









, < o 

' O AO 


^0 ^ V 

v A A *• ’ A V 

A \/ ^ ^ * O . O .0 * S * ^ * A . ^ 


++0* 



<Z 


i + * "^ 1 't V&p *» 

% A 

O jA 

& w> v>* 

1 . o v 

p,; >° ’%. . 

♦ r\ ^ * 

' r \) H * * 

,f° <> * •" ° A ^ 

,0 , > • • ', > V . ' • “ - CV 

t> V flTffc* «** JN ^ t & S* ♦ *P 



1 /°- • 
^ * ® N o 0 ^ 

> V * f • °- C* 


^ <o 

❖ A v * 

*A 

A ^ 

^ * ?.*>•* s (f *0 *. 

\ / .‘J^n! A *\> Y** A k " 



.0 ^ 

’ & -> - „ 

* ® N 0 A 

A' "> v . 

%<* ?m 

* A^CA A • 



** A 

* A v ^ 

A* % * sr ;A * 

O' cM° % V A* 

^ «.\ * 

*> v>^ v TV * 

; V , O O V • } 

}-°'V *- : 

% *••’■ A A 

/A v- %, A s0&*r. 

* A\\ JA o ApA ° ^ 

* cf/ZA-^WV . 

^ 4 A * 

^ A ,,'^y' ^ " # h 1 , */ 4 ^ 

O A <> -o, 0 

O w O ^ X. t B <£ 

Svjr&L- -%■ c 

»- ,-i- * XljmZci*' -p, i * 



° ^5 ^ 

.* *> O 

0 V °^ 

\ V ^ 

V f f * °- cv 
^ ♦ /.^.-- + 

^v 

^ : 

4 A c> 

4 V V 




0 


« / 1 


^ o> o 

* f u ^ \V % 

A s'%> \> o 

'. a/ A A 

• A' J Y - 

^ o.* 4 ,0' Y o A. s 4 A A 'o.» 4 <d 4 '^A s A 

^ r 0 " ° * Ao .‘■'•^ <? ^ f^"^- , 0 " O * , G 

^ '^\\./ O vl ^ -r -r (, ♦ O 



V^ 



»*- A 0 ^ 



\0 ^ 

a, # ^ r\ * & * 

V r ^ V- ^ **•• ^ ^ 

: A/ 

• A j ° * c^a 

<V A ^ A, <- ■'»,,<' ''b '-T^IV A 

" g°A‘A:%A A,i:^/v A.^:Ao 0 










O > 






















4 -■- y ._ °* ••■’• *° *v 

o .0 „ s • •, \> 

«#> .A 



. V 



l 0 ' 7 * 


o 

*£* 

^ 0 _ 

^ 4 O. 

A- C '”•** a° 

> . •;; ’ • % ( <y 

:§M^~ ^ 3 ' 


ro " o 

° . * O 

n -» • »- C ^\ aVv O 

’ ^ v ' * 

V* 0 X ° *^0 > 

o ^5 * \0 V*, ' " *1 o 

* fA a ^r^'^/^il /oJr N ^ ^ ^ 0 y<\ " >t 

oJ r\ + * /> ^ * nT* * 

«£> * $ * o 0 <A o ♦ ** o' & * • <aj o * 

^ .»••, .V , . 'U •" A 0 <*> * 8 „o* cf o 

^ w -Mm>\ \s • ffiter . ** ** :’ • 

4 oV * <vA 0 W/ g£ V^y * /.S vT. 

^ **••* *«■ V’o!^’ <v c ■-...•* ,o* y> -*7wr.' a 

* c 0 ' .‘j^r% ° 0 ,** ,•'■•. ** 0 * ,.*•. •'b " ,4 s 

% *N * *?/f?7^> * ^7 0 • cX^Tv o .r& * 






i°V 

O a. ^ClAf 4 *' * *} ^ 

°^ *•'’•' f° V "*0-0’ y 

' cv .0^ s s ’*' 


,H O. 






^ ff ' 1 * ’ f 0 ^ 

’ *°*. % 4? sl^Lr. ^ 

"= c,^ ; 

, vP S ° 

V^* l o 



* 4? %> o 


VX 


b v* :m£^ 


i° • 7 b 


0 



* <■ S vP 

/ ^ 

V '*- ^ ,0 V e-V. A ^ % . <s> 0 ^ 

. ^o< '’bv* »X 

x. ,v» ’ ^ ^ \'%£zmy>’ *°’’V. «5°* 

*•-•' ^ '°4. *•■'• *° V '* ».^' °o •' 

/* \_/ u * • O /^v A ' s ♦ • V * \ \ ^ 

'* ^ #\/ 

, • .-w,* v > • , y^i™* <,v 'V • 

, 0 V C ° " ° * ^O . v * . . ^ ^ „ . „ *P 

\J * ^Vtv O -i t 



^ /*>’ *'.<o 


<1 > 






C ♦ 

• 

o -7^-V A 0 ^ ■'^ v ^^.' .K o 
^ * ' 1 * A° * » - 0 0 o,^ O * 

^ * si * r ^ > a ^ v s .. ^ / V • t • o ^ 

* jA^^A * 0 tP c^v »''.?^iil%''. ^ ^ ^ 

• AW//A o ^ ^ 

* <£ '\ 1,^^’/ A V *V 

4 <V. '° • * ^ ^ ^ 



A < ^ >> .>■•». ^<P 

j'P t 

" 

. O > 

E V-— • ^ o, * 

o ^ .a 

^ ‘ iWsm * c,^ ^p 

a u ^ '•<■** \} <+ '°*** rC> .T 4 ^ 

sl.ll** o ^ ^ ,o v c o ;°^ ^b ^ v 






o V 




o V 




Xrf >p 



































RELIEF OF HEIRS OF ISRAEL FOLSOM 


HEARINGS 

BEFORE THE 


SUBCOMMITTEE OF THE 

VUotc,. 

COMMITTEE ON INDIAN AFFAIRS 

HOUSE OF REPRESENTATIVES 

SIXTY-SEVENTH CONGRESS 
SECOND SESSION 


ON 

H. R. 7546 


A BILL FOR THE RELIEF OF THE HEIRS OF 
ISRAEL FOLSOM, DECEASED 


APRIL 8 AND SEPTEMBER 12 1922 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1922 


c.0 V 


21241 




El 

£u U&r 



COMMITTEE ON INDIAN AFFAIRS. 

House of Representatives. 

SIXTY-SEVENTH CONGRESS. 
HOMER P. SNYDER, New York, Chairman. 


PHILIP P. CAMPBELL, Kansas. 

RO'iiAL C. JOHNSON, South Dakota. 
FREDERICK W. DALLINGER, Massachusetts. 
ALBERT W. JEFFERIS, Nebraska. 

R. CLINT COLE, Ohio. 

JOHN REBER, Pennsylvania. 

ALICE M. ROBERTSON, Oklahoma. 

E. O. LEATHERWOOD, Utah. 

NESTOR MONTOYA, New Mexico. 

L. M. GENSMAN, Oklahoma. 

SIDNEY C. ROACH, Missouri. 

WASHINGTON J. McCORMICK, Montana. 
OLGER B. BURTNESS, North Dakota. 

DAN A. SUTHERLAND, Alaska. 


CARL HAYDEN, Arizona. 

WILLIAM J. SEARS. Florida. 

ZEBULON WEAVER, North Carolina. 

F. B. SWANK, Oklahoma. 

ROSS A. COLLINS, Mississippi. 
HAMPTON P. FULMER, South Carolina. 
MORGAN G. SANDERS, Texas. 


II 


H. E. Devendorf, Clerk. 

—oTcS ^ 38 I 

R£C6JVfcO 


... n 


C. 

W k 


6 1924 


s 







- RELIEF OF HEIRS OF ISRAEL FOLSOM. 


Subcommittee of the Committee on Indian Affairs, 

House of Representatives, 

Saturday , April 8 , 1922. 

The subcommittee met at 10.30 o’clock a. m., lion. Olger B. Burtness, presiding. 
Mr. Burtness. We have under consideration this morning the bill (H. R. 7546) 
for the relief of the heirs of Israel Folsom, deceased; the bill and report thereon being 
as follows: * 


[H. R. 7546, Sixty-seventh Congress, first session.] 

A BILL For the relief of the heirs of Israel Folsom, deceased. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That the Court of Claims is hereby authorized and directed to 
hear and adjudicate the claims against the Choctaw Nation of the heirs of Israel Fol¬ 
som, deceased, and to render judgment therein in such amount, if any, as may appear 
to be equitably due. Said amount, if any, in favor of the heirs of Israel Folsom shall 
be paid but of any funds in the Treasury of the United States belonging to the Choc¬ 
taw Nation. 

Notice of said suit shall be served on the principal chief of the Choctaw Nation, and 
the Attorney General of the United States shall appear and defend said suit on behalf 
of said nation. 


[Senate Report No. 713, Sixty-seventh Congress, second session.] 

Department of the Interior, 

Washington , March 13, 1922. 

Hon. II. P. Snyder, 

Chairman Committee on Indian A ffairs, House of Representatives. 

My Dear Mr. Snyder: Reference is made herein to H. R. 7546, entitled “A bill 
for the relief of the heirs of Israel Folsom, deceased,” and to your request of February 
11, 1922, for a report thereon. 

The bill is in regard to the claims of the heirs of Israel Folsom against the Choctaw 
Nation and provides that the Court of Claims shall .have authority to hear and adjudi¬ 
cate said claims. Said bill does not set forth the character of the claim or state in 
what it consists. It is presumed, however, that the claims of the heirs of Israel Fol¬ 
som, deceased, against the Choctaw Nation are on account of services alleged to have 
been rendered by said Israel Folsom to the Choctaw Nation as a member of a Choctaw 
delegation representing the Choctaw Nation in the prosecution of what is known as 
“the net proceeds claim.” 

By a resolution of November 9, 1853, of the National Council of the Choctaw Nation, 
P. P. Pitchlynn, Israel Folsom, Dixon W. Lewis, and Samuel Garland were appointed 
delegates of the Choctaw Nation and empowered to represent and to institute in behalf 
of the Choctaw people a claim upon the United States for pay and remuneration for 
the country east of the Mississippi River which the Choctaw Nation ceded to the 
United States Government, and to protect and defend all and every right and interest 
of the Choctaws arising under treaty stipulations or otherwise. It was further pro¬ 
vided in the resolution that in the event of the resignation or death of any of said 
delegates, the chiefs should have power to appoint others to fill such vacancies. 

By resolution of xNovember 10, 1854, the National Council of the Choctaw Nation 
authorized the above-named delegates to continue to press to final settlement all claims 
and unsettled business of the Choctaws with the United States and gave them full 
power to take all measures and to enter into all contracts which in their judgment 
might become necessary and proper in the name of the Choctaw people to bring to 
a final and satisfactory adjustment and settlement of said claims of the Choctaw r ! ribe. 

1 




2 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


It appears that under an agreement signed by Chiefs N. Cechnauer and George W . 
Harkins on November 21, 1855, the above-named delegates were to receive 20 per 
cent upon all claims arising or accruing to the Choctaw Nation or to individuals under 
the treaty of June 22, 1855, for their services in negotiating said treaty and for other 
services which were to be rendered thereafter at Washington. It wgs provided, 
however, that they were to receive no fees for the lease money nor from the funds 
which the Chickasaws were to pay for jurisdiction granted them in the treaty. 

By section 11 of the treaty between the United States and the Choctaw Nation, 
negotiated June 22. 1855, ratified by the United States Senate February 21, 185(5, and 
proclaimed by the President March 4, 1856 (11 Stats. 611-613), it was agreed that the 
claim of the Choctaws to the net proceeds of sales of land under the treaty of September 
27, 1830 (7 Slats. L. 333), and the price to be allowed them for unsold lands should be 
submitted for adjudication to the Senate of the United States. The proceedings 
under this provision are set forth in the statement of facts made by the Supreme 
Court of the United States in the case of the Choctaw Nation v. the United States 
(119 U. S. 1). 

The conclusion reached by the United States Senate was embraced in a resolution 
of March 9, 1859, which provided that the Choctaws be allowed the proceeds of the 
sale of such lands as had been sold by the United States on January 1, 1859, deducting 
therefrom the cost of their survey and sale and all proper expenditures made under 
the treaty, excluding the reservations allowed and accrued, and estimating the scrip 
issued in lieu of reservations at the rate of $1.25 per acre; and, further, that they be 
allowed 12£ cents per acre for the resid ue of said lands. 

By resolution of the same date the Secretary of the Interior was directed to cause 
an account to be stated with the Choctaws, showing the amount due them, and report 
the same to Congress. 

On May 8, I860, the Secretary made a report showing that the sum of $2,981,247.30 
was due the Choctaws. The Indian appropriation act, of March 2, 1861 (12 Stats. L. 
221-238), provided for the payment to the Choctaw Nation on account of their claim 
under articles 11 and 12 of the treaty of June 22, 1855, the sum of $500,000. of which 
$250,000 was to be paid in money, and for the residue the Secretary of the "treasury 
was to cause to be issued on the requisition of the proper authorities of the tribe bonds 
of the United States. It appears that the $250,000 in money was paid but that the 
bonds were never issued to the nation. 

By the act of March 3, 1881 (21 Stat. L. 504), jurisdiction was conferred on the 
Court of Claims to try all questions of difference arising out of treaty stipulations with 
the Choctaw Nation, and to render judgment thereon. 

Suit was brought by the Choctaw Nation against the United States which resulted 
in a decision in March, 1886, in favor of the plaintiffs and judgment for $408,120.33. 

Both parties appealed to the Supreme Court of the United States by whose decision 
on November 15, 1886, the judgment of the Court of Claims was reversed and the case 
remanded With instructions to enter a judgment in conformity with that opinion. 
Judgment was finally entered in favor of the Choctaw Nation for $2,858,798.62. Said 
sum, together with interest thereon, which amounted to $219,571.61, a total of 
$3,078,3/0.23, was appropriated in favor of the Choctaw Nation by section 9 of the 
act of Congress of June 29, 1888 (25 Stat. L. 217-232). 

By an act of the Choctaw Council of February 25, 188S, it was provided that whereas 
the delegates of the Choctaw Nation of 1853, composed of P. P. Pitchlynn, and others, 
had recovered from the United States Government in favor of the Choctaw Nation 
$2,858,798.62, and whereas under the contract with the Choctaw Nation said delegates 
were entitled to be paid 20 per cent of said judgment, the sum of 20 per cent of the 
amount appropriated by Congress as payment of said judgment be appropriated out 
of said funds and it was directed that it be paid to Campbell Le Flore and Edmund 
Mc( urtam, the delegates and successors to P. P. Pitchlynn and other delegates of 
1853, to enable them to pay the expenses and discharge the obligations in the prosecu¬ 
tion of said claim, and to settle with the respective distributees of said delegates. 

It was further provided that the sum of $23,395.39, being the balance due the dele¬ 
gates under the settlement of November, 1861, be appropriated out of said funds less 
10 per cent on $1,500. It was further provided that the payment of said sum to 
Campbell Le Flore and Edmund McCurtain, successors to P. P. Pitchlynn, and 
others, should be accepted as a complete payment and a final discharge of'all debts 
and obligations of the Choctaw Nation to said delegates under their contract. The 
tribal act provided for a payment of 20 per cent to the delegates named and that the 
sum of 30 per cent to the attorneys should be accepted a3 a full and final settlement 
of the amount due under their respective contracts, and that the remaining 50 per 
cent of the amount appropriated for the payment of the judgment should be retained 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


3 


in the Treasury of the United States subject to the legislation and requisition of the 
General Council of the Choetow Nation for payment of the claims of individual Choc¬ 
taws under article 12 of the treaty of 185G, and for other purposes. 

It appears that the sum of $038,944.46, as being 20 per cent of the judgment above 
referred to, was paid on July 27, 1888, by the Treasury Department by Treasury war¬ 
rant No. 387 to Campbell Le Flore and Edmund McCurtain. It further appears that 
on July 3, 1889, Messrs. Le Flore and McCurtain submitted to the Choctaw Council a 
report and itemized statement showing disbursement of said fund under the pro¬ 
visions of the Choctaw tribal act of February 25, 1888. A copy of the report is inclosed 
for the information of your committee. 

By section 3 of the act of Congress of May 29, 1908 (35 Stat. L. 444-445), the Court 
of Claims was authorized and directed to hear and adjudicate the claims of the estate 
of Samuel Garland, deceased, against the Choctaw Nation, and to render judgment 
thereon in such amounts, if any. as might appear to be equitably due. 

By act of Congress of June 21. 1906 (34 Stat. L. 325-345), said court was authorized 
and directed to hear and adjudicate the claims against the Choctaw Nation of the 
heirs of eter P. 1 itchlynn, deceased, and to render judgment thereon. 

In reference to the case of Ellen Garland et al., heirs of Samuel Garland, deceased, 
tl 
the ( 

Court < 

Court of Claims to hear and determine the claims against the Choctaw Nation of the 
heirs of Peter i itchlynn and of the heirs of Samuel Garland, and of the above men¬ 
tioned decision of the Supreme Court of the United States in the Garland case, I 
see no objection to conferring upon the Court of Claims authority to hear and adjudicate 
the similar claims of the heirs of Israel Folsom, said Israel Folsom being one of the 
Choctaw delegation of 1853 of which said Feter P. Titchlynn and Samuel Garland 
were members aud with whom said Israel Folsom was associated in the matter of the 
prosecution on behalf of the Choctaw Nation of the net proceeds claim. 

I suggest, however, that 11. R. 7546 be modified by inserting after the word “de¬ 
ceased. in line 5 of said bill the following words: “On account of services rendered 
by said Israel Folsom on behalf of the Choctaw Nation in connection with the net 
proceeds claims of said nation.’' 

I further suggest that the bill be also amended by the addition thereto of the fol¬ 
lowing paragraph: 

‘ That either party in the above-mentioned case may, within three months from 
rendition of any judgment by the Court of Claims in said case, appeal therefrom to the 
Supreme Court of the United States.’’ 

If the bill be amended as suggested. I see no objection to its enactment. 

Respectfully, 

E. C. Finney, Acting Secretary. 

Senator Gore, we will be glad to hear you in support of the bill. 



STATEMENT OF HON. THOMAS P. GORE, ATTORNEY FOR THE HEIRS 
OF ISRAEL FOLSOM. DECEASED. 


Mr. Gore. Mr. Chairman, I have a little memorandum prepared in reference to the 
bill, and I will be glad to leave it with the committee. 

Mr. Burtness. I presume you desire to have this memorandum inserted in the 
record. 

Mr. Gore. I think it would be a good idea, Mr. Chairman, so as to have it accessible 
to the members of the committee. 

Mr. Burtness. Without objection, the memorandum will go into the record at 
this point. 

(The memorandum referred to is as follows: ) 


MEMORANDUM IN RE H. R. 7546 AND S. 3308, IDENTICAL BILLS, FOR THE RELIEF OF THE 
HEIRS OF ISRAEL FOLSOM, DECEASED. 

I. 

The Choctaw Nation, through an act of its council adopted November 9, 1853, 
authorized and designated a delegation, consisting of Israel Folsom, Peter P. Pitch- 
lynn, Samuel Garland, and Dixon W. Lewis, to visit Washington and secure an 
adjustment with the United States of claims made by the Choctaw Tribe of Indians 


4 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


as to “the net proceeds” of certain lands east of the Mississippi which had been sold 
to the United States. (Dixon W. Lewis soon died and was succeeded by Peter 
Folsom.) 

II. 

This delegation brought about the treaty concluded between the United States and 
the Choctaw Nation on June 22, 1855, subsequently ratified by the Senate. Article 
II of this treaty constituted the Senate of the United States as arbitrator respecting 
the ‘‘net proceeds, claims,” etc. The Senate, January 9, 1859, found in favor of the 
Choctaws and directed the Secretary of the Interior to ascertain and state the account, 
which was subsequently stated at $2,981,247.30. (Report made on May 8, 1860.) 

III. 

On November 21, 1855, the principal chief of the Choctaw Nation and two district 
chiefs entered into a contract with Israel Folsom, Peter P. Pitchlynn, Samuel Gar¬ 
land, et al., in which it was stipulated that the delegation should receive 20 per cent 
of the amount recovered on the net proceeds claim and other claims. Numerous re¬ 
solutions were subsequently passed confirming the authority vested in the delegation 
and ratifying the contract in question. 


IV. 

The -Supreme Court of the United States rendered final judgment in behalf of the 
Choctaw in the ‘ ‘net proceeds” controversy for the sum of $2,858,798.62. (November 
15, 1886.) 

V. 

Congress appropriated the money to pay this judgment, including interest, 
$3,078,370.23, on June 29, 1888. 

VI. 

In the meantime, February 25, 1888, the Choctaw council passed an act authorizing 
the appointment of Campbell LeFlore and Edmund McCurtain, who were appointed 
to collect the 20 per cent of the net proceeds judgment and to make proper disburse¬ 
ment of the same to Israel Folsom, Peter P. Pitchlynn, Samuel Garland, et al., or, 
rather, to their heirs. 

VII. 

Campbell LeFlore and Edmund McCurtain accordingly collected, upon requisition 
the 20 per cent, or $638,944.46. They made partial payments to the heirs of the said 
Folsoms, Pitchlynn, and Garland, but a great deal of the sum collected was paid to 
parties who had no rightful claim to the same. 

VIII. 

The Congress, therefore, passed an act June 21, 1906, for the relief of the heirs of 
Peter P. Pitchlynn, which is, in part, as follows: 

“That the Court of Claims is hereby authorized and directed to hear and adjudicate 
the claims against the Choctaw Nation of the heirs of Peter P. Pitchlynn, deceased, 
and to render judgment thereon in such amounts, if anv, as may appear to be equitably 
due.” (34 Stat. L. 325-245.) 

IX. 

A similar act for the relief of the heirs of Samuel Garland was passed by Congress on 
May 29, 1908 (35 Stat. L. 444^45.) 


X. 

On the original hearing, the Court of Claims rendered judgment in behalf of Samuel 
Garland in the sum of $94,000. On rehearing, this judgment was set aside on three 
points of law. An appeal was taken by the heirs of Garland to the Supreme Court of 
the United States. And this court, on June 1, 1921, reversed the judgment of the 
Court of Claims and remanded the case for further adjudication. 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


5 


XI. 

Among other things, the Supreme Court said: 

The petition showed services rendered, and if the petition be true, valuable 
services, and for them there should have been recovery if the Nation was liable, and 
we think it was.” (Adv. Op. U. S. Sup. Ct, July 15, 1921, p. 704.) 

XII. 

The Assistant Secretary of the Interior, Mr. Finney, in a report on H. R. 7546, for 
the relief of the heirs of Israel Folsom, deceased, which is identical with S. 3308, 
recommended two amendments. The suggested amendments are as follows, and 
should be adopted: 

*|(I) Insert after the word ‘deceased’ in line 5 of said bill, the following words: 

“ ‘On account of services rendered by said Israel Folsom on behalf of the Choctaw 
Nation in connection with the net proceeds claims of said nation.’ 

(2) “Add the following paragraph: 

‘That either party in the above-mentioned case may. within three months from 
rendition of any judgment by the Court of Claims in said case, appeal therefrom to 
the Supreme Court of the United States.’ ” 

Respectfully submitted. 

T. P. Gore. 

Mr. Gore. Mr. Chairman, this matter I want you to consider, really runs back 102 
years—that is, the transactions and treaties out of which it grows. There was the 
original Choctaw] treaty of 1820, and there have been numerous treaties and agreements 
between the United States and the Choctaws out of w r hich grew certain claims on the 
part of the Choctaw Nation against the United States. I v T ill not go into the details, 
but they can be found in the case of the Choctaw Nation against the United States, 
119 United States Supreme Court Reports, page 1. There is an elaborate and detailed 
history of all of these transactions in that report. This matter has had a very multi¬ 
farious history, covering a great many acts of Congress, several suits, a number of 
treaties, and a number of acts and resolutions on the part of the Choctaw council. 
It is a very complicated history, and I will not go into that now. 

Mr. Burtxess. As a matter of fact, I take it that we are not concerned so much with 
the merits of the original controversy between the Choctaw Nation and the United 
States, because that has been settled. 

Mr. Gore. Yes. 

Mr. Burtxess. What we are concerned with in connection with this bill is, rather, 
the rights, if any, of the heirs of Israel Folsom for work done in connection with those 
proceedings. 

Mr. Gore. That is the point, exactly. Now, then, on the 9th day of November, 
1853, the Choctaw Council passed a resolution creating a delegation to come to Wash¬ 
ington to look after what is known as “the net proceeds claim.” I will not stop now to 
explain w r hat that was, because it is immaterial at this time, and there were other 
claims on the part of the Choctaws against the United States. 

That delegation thus created was composed of Israel Folsom, Peter P. Pitcl lynn, 
Samuel Garland, and Dixon W. Lewis. Dixon W. Lewis died soon afterward: , and 
Peter Folsom was appointed to succeed him. The three members that we will con¬ 
sider to-day, or the three members that will figure in this hearing, were Israel Folsom, 
Peter P. Pitchlynn, and Samuel Garland. They came on to Washington by virtue of 
that appointment, and succeeded in negotiating a treaty with the United States in 
regard to the net proceeds claim and other claims. That treaty was entered into on the 
22d of June, 1855, and was duly ratified the next year. On the 21st of November, 1855, 
the Choctaw Nation, through the chief governor and two district governors, or prin¬ 
cipal chiefs, entered into a contract with those four delegates who had been created by 
the resolution adopted two years previously. As I was saying, on the 21st of Novem¬ 
ber, 1855, a contract was entered into with those delegates by which they were to re¬ 
ceive 25 per cent of the net proceeds claims when collected. 

The treaty of 1855, to which I have just referred, appointed the United States 
Senate as the arbitrator to ascertain the amount due the Choctaw Nation, which was 
an unusual proceeding, without precedent, and which has h'ad no parallel since. 

The Senate, in pursuance of artic le 11 of that treaty, der ided in 1859 that the United 
States owed the Choctaw Nation $2,900,000, and they directed the Secretary of the 
Interior to state the exact amount of the account. Soon afterwards the Secretary of 
the Interior, in pursuance of the order of the Senate, or finding of the Senate, rendered 
the account as $2,900,000 plus. On March 3, 1861, Congress passed a bill appropriating 


6 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


$250,000 in part payment of this award, and authorized the issuance of $250,000 worth 
of bonds for the payment of the same. The bonds were never issued. The matter 
dragged along until 1881, when Congress passed a resolution directing the Court of 
Claims to hear and adjudicate the claims on the part of the Choctaws in respect of the 
net proceeds claim and other claims, and to hear the matter de novo. 

Mr. Burtness. In what year was that? 

Mr. Gore. On March 3, 1881. Now, in accordance with this resolution, the Court 
of Claims heard and determined the cases, and rendered judgment in favor of the 
Choctaws in the sum of $409,000, I think it was, and that case is reported in Volume 21, 
Reports of the Court of Claims. The Choctaw Nation took an appeal to the Supreme 
Court, and on November 15, 1886, the Supreme Court reversed the Court of Claims, 
and gave judgment in favor of the Choctaws for exactly the amount ascertained to be 
due by the Senate, the judgment of the Supreme Court being based upon the Senate 
award, less a payment of $250,000. I think the judgment was for $2,800,000, the 
interest, of course, coming off. 

Mr. Burtness. If you will pardon an interruption, you referred to a contract made 
between the Choctaw Nation and those four delegates after the treaty had been ratified. 
Can you furnish us either with a copy of that contract or a citation to some document 
containing the contract? 

Mr. Gore. I think I can furnish you a brief that contains the contract, or, at least, 
the substance of it. 

Mr. Burtness. I thought that possibly the contract might be set out, or the sub¬ 
stance of it, in some decision. 

Mr. Gore. It, may be and probably is. 1 have it in a brief, I know. 

Mr. Swank. 1 imagine it is in the decision of the Court of Claims. 

Mr. Burtness. As I understand it, the decision of the Court of Claims had nothing 
to do with the rights of these delegates. 

Mr. Gore. No: it did not. I will try to furnish you a copy of the contract. I 
think I have it in a brief. 

Mr. Burtness. I think that is very important, because it is really upon that con¬ 
tract that the rights of these heirs would have to be based. 

Mr. Gore. Yes. 1 think you will find that in a letter from the Secretary of the 
Interior written to this committee reporting on the bill, that you are now considering. 
This bill has been report ed on by the Secretary of the Interior. At any event, if 1 have 
it, I will furnish it. 

Afterwards, on June 29, 1888, Congress appropriated funds to pay the judgment 
of the Supreme Court. I think the appropriation was $3,078,000, and that included 
the interest. Now, between the time of the judgment of the Supreme Court and the 
appropriation by Congress, the Choctaw Council, on November 25. 1888—and you 
want to mark this—appointed Edmund McCurtain and Campbell LeFlore as delegates 
or as agents to collect this 20 per cent fee and to make payment from it to the parties 
entitled to receive it. There were resolutions adopted acknowledging this contract 
and the obligation under the contract. 

I have a brief that reviews all of it, but perhaps it would encumber the record too 
much to set all of it out here. Campbell LeFlore and Edmund McCurtain came to 
Washington. They received a requisition from the proper authority to come here 
for that purpose, by virtue of which requisition they collected the 20 per cent, which 
amounted to $638,000. Afterwards they made partial payments to the heirs of 
Samuel Garland, Israel Folsom, Peter Folsom, and Peter P. Pitehlynn. They paid 
to the heirs of Israel Folsom $45,000, to the heirs of Peter Folsom $45,000, to the heirs 
of Samuel Garland, I think, $60,000, and to the heirs of Peter P. Pitehlynn $107,000. 
Those payments, however, did not take up the full 20 per cent, but they made a 
great many payments to different parties. I can furnish a list of all payments made 
by them if the committee desires it. 

Mr. Swank. The total fee of those parties, as I understand it, was something over 
$690,000. 

Mr. Gore. $638,000. 

Mr. Swank. The heirs of Israel Folsom were to receive what part of that? 

Mr. Gore. They were to have received about $159,000. They claim they were 
entitled to one-fourth of it, or $159,000. 

Mr. Burtness. Did those four delegates have any contracts among themselves 
specifying the division that was to be made? 

Mr. Gore. No, sir: they were to share and share alike, so far as the record discloses. 
Now, as I have said, a number of payments were made to different parties, a list of 
which 1 can present to the committee. Le Flore and McCurtain claimed that those 
payments were due to those various and sundry people, while the heirs of the Folsoms, 
Garland, and Pitehlynn claimed that those payments were unauthorized, or that, if 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


7 


they weie due, they ought to have been paid out of other funds of the ( hoctaw Nation 
and not paid out of the funds representing the fee which belonged to them. On 
June 2L, 190(>, ( ongress passed a bill authorizing the heirs of Peter P. Pitchlynn to 
oi mg suit in the Court of Claims, to try their rights in the remainder of the 20 per 
cent fee. 

Mr. Burtness. Before going into that, let me see if I understand how those two 
men, Le More and Met urtain, were really delegated to do this work. 

Mr. (tore. 1 will come to that later. That has been passed on by the Court of Claims 
and by the Supreme Court. 

Mr. Burtness. You will come to that later? 

Mi. (tore. \es, sir. 1 hat was in pursuance of the resolution to which I was re¬ 
ferring. 1 lie act on behalf of the Pitchlynn heirs was passed on June 21, 1906, and, 
two years later, an act was passed by Congress for the relief of the heirs of Samuel 
Garland, that act being approved May 28, 1908. No resolution or act was ever passed 
by Congress for the relief of the heirs of Israel Folsom or for the relief of the heirs of 
I eter Folsom. Suits have been brought in the Court of Claims on behalf of the heirs 
of Peter Pitchlynn and on behalf of the heirs of Samuel Garland. The suit in behalf 
of the Garland heirs went to trial in the Court of Claims, and in 1917—I do not recall 
the exact date, although 1 have the opinion here, the opinion being by Judge Hay— 
the Court of Claims found in favor of the Garland heirs and rendered judgment for 
$94,000. J 6 

There was an error, according to the contention of the heirs, in the calculation, it 
being merely a matter of mathematics. They claimed that the amount should have 
been $104,000. At any rate, the Court of Claims heard the case by virtue of the act 
of Congress on the principle of quantum meruit, and returned a judgment in favor of 
the heirs for $94,000. The Government and the Choctaw Nation filed a motion for a 
rehearing, and on the rehearing the Court of Claims vacated the former judgment on 
two or three points of law. 

One point of law was that the claim was really based upon a contract, while the 
resolution of Congress suggested that the Court of Claims should hear and determine 
the case on the principle of quantum meruit. The Court of Claims held that the suit 
should have been dismissed upon that ground—that is, that an action based upon a 
contract could not be brought under that resolution. One of the other points was the 
very point raised a minute ago—that is, the Choctaw Nation contended that Leflore 
and McCurtain, who were appointed on February 25. 1888, constituted the successors 
of the four men originally appointed, and that they were a delegation vested with the 
same powers as the original delegation, and that when they received the $638,000 the 
delegation received it. 

Mr. Burtness. They did actually receive, did they not, the 20 per cent, or the 
amount of the judgment that was recovered, and they did actually disburse that 
amount? 

Mr. Gore. They did; yes, sir. 

Mr. Burtness. Now, it is your contention that the receipt of that money was not 
binding upon Folsom and the other delegates? 

Mr. Gore. The Supreme Court has decided that. 

Mr. Burtness. What was the theory of that decision? 

Mr. Gore. I will come to that. As 1 have said, the Choctaw Nation contended 
and the Department of Justice contended that the appointment of LeFlore and 
McCurtain on February 25, 1888, was simply a continuation of the old delegation, 
and that when they were paid $638,000 the Choctaw Nation was acquitted of any 
further obligation in the premises. They further contended that the disbursement 
by LeFlore and McCurtain was a disbursement by the delegation, and that the Choctaw 
Nation was not responsible for it. Now, the Court of Claims on the rehearing set aside 
the judgment for $94,000, the court accepting on the rehearing the theory that LeFlore 
and McCurtain constituted the same delegation, or a continuation of the same delega¬ 
tion, and that the payment to them was an acquittance of the Nation and a discharge 
of its responsibilities. 

Mr. Burtness. That was doubtless the understanding and intent of the Choctaw 
Nation at the time, was it not? 

Mr. Gore. I do not think so, and the Supreme Court found that it was not. Now, 
the heirs of Garland, in that case, contended that LeFlore and McCurtain were not a 
delegation, but that they were the agents of the Choctaw Nation, specifically ap¬ 
pointed and directed to collect this $638,000, and to pay it to those heirs who should 
have received it. 

Mr. Burtness. That is the impression I have—that is, that they were specifically 
agents, and that the Choctaw Nation thought that they were appointing them as their 
agents to discharge this particular trust, and that, as such agents, they did collect the 


8 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


money. Now, the question in my mind is whether the right people got the money or 
whether the Choctaw Narion paid it to the wrong parties. 

Mr. Gore. That is just the point. The Court of Claims found that they were dele¬ 
gates and not agents. Of course, if they were agents, the nation was bound by their 
acts. Therefore the Court of Claims set aside the judgment of $4,000 and dismissed 
the case. They dismissed it upon the question of quantum meruit and contract, or 
upon the question of the right to bring a case based upon a contract under the resolu¬ 
tion. The Garland heirs took an appeal to the Supreme Court of the United States, 
and on June 1 of last year the Supreme Court of the United States handed down its 
opinion in the case, in which the Supreme Court of the United States reversed the 
finding of the Court of Claims on every point of law. The Supreme Court of the United 
States held that LeFlore and McCurtain did not constitute a delegation and were not a 
continuing body, but the Supreme Court held that LeFlore and McCurtain were 
agents of the Choctaw Nation; that the nation was the principal, and that the principal 
was bound by the acts of the agents. They held that when they collected this money 
and misappropriated it the nation was responsible for their acts. 

Mr. Burtness. Is it your contention now that LeFlore and McCurtain did mis¬ 
appropriate the money? 

Mr. Gore. Yes; they did. They did not pay it to the people who should have 
received it. There is a marked sentence there in the Supreme Court decision which, 
it seems to me, ought to settle the matter. 

Mr. Burtness. Without objection, three paragraphs of the decision of the Supreme 
Court of the United States in the case of Heirs of Samuel Garland, deceased, v. the 
Choctaw Nation (65 Lawyers’ Edition of Supreme Court Reports, p. 702), will be 
included in the record at'this point, the paragraphs referred to reading as follows: 

“The enactment of 1888 was a deputation to LeFlore and McCurtain to collect and 
disburse the congressional appropriation, and they became for that purpose the agents 
of the nation, not the agents of the delegation, and it was the first deputation of that 
power. By a prior enactment the payments made to the delegation were from the 
National Treasury, and another (1867) provided for such payments. In other words, 
until the enactment of February 25, 1888, the control of the appropriation was in the 
nation, and payments out of it by the nation. 

“Our conclusion, therefore, from the record, is not that of the Court of Claims. 
There was implication at least of liability to the delegates individually. And this 
was the understanding of the delegates. LeFlore so understood it, and the payment 
made to Garland’s estate was a recognition of it. The payment is distinctly in oppo¬ 
sition to the contention of the Government and the conclusion of the Court of Claims. 
Both the contention and the conclusion assert a unity in the delegation, the rejection 
of any individual payments or rewards to the delegates, a time limit upon compensa¬ 
tion for their services, however great or effective, a kind of jus accrescendi in 'the 
successors of deceased delegates. If such right existed at all, it would have existed 
even though the succession had come a moment before the congressional appropriation 
was made, and no services whatever rendered by the successors of deceased delegates. 
* * ***** 

The contention under the facts disclosed in the petition is technical. The petition 
showed services rendered, and, if the petition be true, valuable services, and for them 
there should have been recovery if the nation was liable, and we think it was. How 
much we do not say nor did the Court of Claims consider, it being of opinion that the 
nation was not liable for anything. Upon the return of the case it may determine the 
amount due Garland, if anything, dependent upon w r hat his services contributed in 
securing the congressional appropriation. 

“The judgment of the Court of Claims must therefore be reversed, and it is so 
ordered.” 

Mr. Gore. The Supreme Court reversed the Court of Claims on all points of law. 
Now, after an act has been passed for the relief of the Pitchlynn heirs and an act has 
been passed for the relief of the Garland heirs, it would seem that the Folsom heirs, 
who stand upon exactly the same footing, would, in equity, be entitled to the passage 
of an act for their relief. If they have any rights in the premises, they ought to have 
opportunity to go into court and establish them, and, of course, if they have no rights, 
when they go into court the court would so hold. 

As I have said, the first judgment in the Court of Claims was for $94,000, but upon 
the rehearing they reversed that judgment upon technical points of law. The 
Supreme (Yurt says that the points were technical. The Supreme Court held that 
LeFlore and McCurtain were the agents of the Choctaw Nation, and that the Choctaw 
Nation was bound by their acts. In view of the action taken in the other cases, it 
would seem to be equally just and proper to allow' the heirs of Folsom to avail them¬ 
selves of the same rights and opportunities that have been accorded by Congress to 
the heirs of Pitchlynn and the heirs of Garland. 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


9 


Mr. Burtness. I find in the report submitted by the department a copy of the 
resolution creating the delegation to settle all of the unsettled business with the 
o ^ °* ^ le United States, the resolution having been approved on November 

u Vt • j ere * s a ^ so a c °Py the resolutions relative to the Choctaw claims against 
the United States approved November 10, 1854. There is also a copy of an act ap¬ 
proved February 25, 1888. 

Mr. Gore. Ye3, sir; LeFlore and McCurtain were designated in that act to collect 
this money. There were two acts passed by the Choctaw Council that day, one 
appointing those men and the other relating to the collection of the claims. 

Mr. Burtness. Is this a bill passed by Congress? 

Mr. Gore. No, sir; that was passed by the Choctaw Nation. 

Mr. Burtness. I notice in section 3 of that bill that LeFlore and McCurtain are 
designated as delegates of the Choctaw Nation, successors to P. P. Pitchlynn and 
others. Is it your contention that that designation in the bill was not binding upon 
Pitchlynn and others? 

Mr. Gore. Yes, sir; and that point has been decided by the Supreme Court. 

Mr. Burtness. Can you tell whether Israel Folsom or any other of the delegates 
were at that time members of the council? 

Mr. Gore. No, sir; they were dead. 

Mr. Burtness. Were any of their heirs members of the council? 

Mr. Gore. I do not know. 

Mr. Burtness. Will you state briefly, so that we may have it in the record, just 
what the governing body of the Choctaw Nation at that time was? 

Mr. Gore. They had a principal chief and, apparently, district chiefs. They had a 
legislative body, consisting of two houses, an upper house and lower house. Mr. 
Carter can describe their government better than I can. 

Mr. Carter. They had a chief and two district chiefs, presiding over the three dis¬ 
tricts in the Choctaw Nation. They had a council composed of a house and senate, 
and they had a judicial system similar to that of the United States. 

Mr. Gore. Yes: they had three distinct departments of government. 

Mr. Carter. They had a county and probate court, a district court, and a supreme 
court. Then they had such officers as sheriffs and constables, an educational depart¬ 
ment, an attorney general, and other departments of government similar to those of 
the Government of the United States. They had a written constitution. 

Mr. Burtness. That is very interesting. Their legislative assembly was fashioned 
somewhat upon the legislative system of the United States, also? 

Mr. Carter. Yes. Like the United States. They were a sovereignty and could 
not be sued. Therefore, all matters of this kind came before the legislative body, 
because they could not go into court with them. 

Mr. Gore. Those original delegates were engaged upon this business for nearly five 
years, and the Supreme Court of the United States makes the point that if those two 
men had been their successors in office, they could have been appointed one minute 
before the business was concluded and would share equally with the delegates origi¬ 
nally appointed. 

Mr. Swank. As I understand it, the substance of that opinion by the Supreme 
Court of the United States is that the Choctaw Council could not determine the rights 
of the heirs of those commissioners or delegates by an enactment of their legislative 
body. 

Mr. Gore. Yes. 

Mr. Swank. Because they said that they were agents of the commissioners, and 
that they did not make them agents of the nation, whereas the Supreme Court says 
that they were agents of the Choctaw Council. 

Mr. Gore. The Court of Claims said that they were not agents, but the Supreme 
Court said that they were agents and not delegates. The Supreme Court held that 
they were agents of the Choctaw Nation and not agents of the original delegates. 

Mr. Burtness. I find this provision in the resolution creating the delegation: 

“ Be it further resolved , That in case of resignation or death of any of the said delega¬ 
tion above mentioned, the chiefs have the power to appoint any person to fill such 
vacancy in his district. ’ 

I want to see w T hat your answer is to this thought: The rights of these delegates 
being based, of course, upon this resolution which created the delegation in the first 
instance, it might be claimed that when the Choctaw Nation, in its bill passed later, 
specifically designated Le Flore and McCurtain as successors of the original delegation, 
such designation or appointment might be binding. 

Mr. Gore. My answer is that that is exactly the point that the Supreme Court 
of the United States has passed upon. The Court of Claims held that they were 
delegates, or successors to those delegates, appointed in the place of the original 


10 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


delegates, and that they were not agents of the nation. Now. an appeal was taken 
on that point to the Supreme Court of the United States, but the Supreme Court of 
the United States has held that they were agents of the nation, and that the nation 
is bound by their acts. 

Mr. Burtness. That settles that feature of it. 

Mr. Gore. Yes; my view of it is that that forecloses that question, because the 
Supreme Court remanded the case to the Court of Claims with directions to ascertain 
how much was due. 

Mr. Carter. Has that decision gone into the record? 

Mr. Gore. A portion of it. A part of it was read a minute ago. 

Mr. Burtness. Assuming that that question is foreclosed, and it seems to me that 
it is, without doubt, or, at least, without any serious doubt, then the question is did 
those agents of the Choctaw Nation, Le Flore and MeCurtain, misappropriate the funds 
paid to them? The Choctaw Nation has paid it. There is no doubt about that, 
because their money has been appropriated to pay this claim, or it was intended to' 
be appropriated for that purpose. 

Mr. Gore. Yes. 

Mr. Burtness. Then, it seems to me that what we are interested in is, first, whether 
there was any misappropriation, or whether those delegates or their heirs got the money 
that they were entitled to; and, second, assuming that there may have been some 
misappropriation, yet, I think we would be interested somewhat in the actions of 
those delegates and their heirs to determine whether they are estopped from making 
any claim. If they recognized these men in any way as their agents to collect this 
money, then, of course, there might still be some substantial defense. 

Mr. Carter. Having some considerable familiarity with tribal forms and their 
methods of doing business, I am prompted to ask you this question: Have you any 
evidence that that money was actually paid, or only evidence that an appropriation 
was made? 

Mr. Burtness. As I understand the report, the money was actually paid to MeCur¬ 
tain and Le Flore; is not that right? 

Mr. Gore. Yes; they actually got the money, and they returned a long list of the 
payments that they made. There is a good deal of suggestion in the record that the 
payments were not only not regular but that they were subject to very serious 
criticism. 

Mr. Burtness. The department has furnished a statement of the account which 
was rendered by Le Flore and MeCurtain and signed by them as Choctaw delegates, 
dated July 3, 1889. We are now concerned particularly with the heirs of Israel 
Folsom, deceased, so far as this bill is concerned. 

Mr. Gore. Yes. Mr. Carter, Governor Duke testified that he got $1,500 of this 
money, and when he asked for what service, he said that he sympathized with the 
claim of the delegates. That was the only service that he claimed to have rendered. 

Mr. Burtness. One of the first credits claimed by the delegates in this report is 
the payment of $45,894.29 paid to I. Folsom. Is that disputed? 

Mr. Gore. No; that wa3 paid. That would seem to me to conclude one of the 
questions raised, because Le Flore and MeCurtain paid the heirs of Peter P. Pitchlynn 
$107,000. They paid the heirs of Israel Folsom $45,000, making a difference of 
$62,000 between the payment to the heirs of Israel Folsom and the payment to the 
heirs of Peter P. Pitchlynn. Certainly, the four delegates were entitled to the same 
compensation, or we must assume that. It appears upon the face of the report 
itself that the Pitchlynn heirs received $62,000 more than the heirs of Israel Folsom. 

Now, all that we want to have is the opportunity to go into court and ascertain 
whether or not this balance is due. If it is not. then the Choctaw Nation will escape 
harmless. 

Mr. Burtness. Do you know whether any of those delegates signed any receipts 
to those two men. LeFlore and MeCurtain? 

Mr. Gore. Yes; I think they did. 

Mr. Swank. What position does Mr. Clark, the tribal attorney, take on this matter? 

Mr. Burtness. He wants to be heard if there is any disposition on the part of the 
committee to report the bill. 

Mr. Carter. If the chairman will permit. I will say that when I introduced this bill, 

I called the attention of the Choctaw chief to it. Then, when Mr. Snyder was to have 
a hearing upon it, I notified the chief, saying that the hearing was to be held in 
December. He wrote me back, saying that he would advise the tribal attorney for 
the Choctaws so that he might take such action as he saw fit. 

Mr. Gore. It would seem to me that after a resolution has been passed by Congress 
in behalf of the Pitchlynn heirs, and after a congressional act has been passed in behalf 
of the Garland heirs, the same opportunity should be afforded the heirs of Israel 
Folsom. I say that in view of the further fact that the Pitchlynn heirs have received 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


11 


$62,000 more than the heirs of Israel Folsom. Now, in view of all those facts, and in 
view of the fact that the Court of Claims first found that $94,000 was still due the 
Garland heirs, and in view of the fact that when the case was appealed to the Supreme 
('ourt, the Supreme (hurt reversed the decision of the Court of Claims on the points 
of law involved, and held that LeFlore and McCurtain wejje agents of the Choctaw 
Nation, it seems to me that the heirs of Israel Folsom should, at least, have their 
day in court. 

Mr. Burtness. Have any of the decisions of the courts dealing with any of these 
matters determined the question of whether those various delegates had the same in¬ 
terest in the claim or not, or whether or not they should recover share for share alike? 

Mr. Gore. No; I do not think they have. 

Mr. Burtness. I notice from this report made by LeFlore and McCurtain that they 
credited P. P. Pitchlynn with 23 years’ service at the rate of $5,000 per year; that they 
credited Dixon W. Lewis with only three years’ service; Samuel Garland with four 
years’ service, Israel Folsom with five years’ service, Peter Folsom with four years’ 
service, ('. LeFlore with four years’ service, and McCurtain with one year’s service. 
It was apparently the contention of those two agents of the Choctaw Nation that 
Pitchlynn was entitled to more of this amount than the others. 

Mr. Gore. They might have considered it that way, because they seem to have 
taken the view that they could dispense this money according to their own will and 
caprice; but in the case brought in the Court of Claims by the heirs of Pitchlynn, 
this $5,000 a year for 23 years’ service was an entirely different item from the 20 per 
cent of the net proceeds claims, and thev are now claiming this $5,000 a vear, or 
$115,000. 

Mr. Burtness. In addition to this? 

Mr. Gore. Yes; in addition to this. 

Mr. Burtness. Have you any evidence that Garland or Folsom, or any of the other 
delegates protested against the report as made by McCurtain and LeFlore to the 
Nation? 

Mr. Gore. I think you will find that running through the record, for this reason, 
that in 1897 the Choctaw Council passed a resolution acknowledging the indebtedness 
of the Nation to Garland in the sum of $115,000, crediting $45,000 that had been paid. 
They passed a resolution appropriating money to pay that amount, but it was vetoed 
by the governor upon the ground, not that it'was not due or just, but upon the ground 
that it would exhaust the Choctaw treasury and impair the school system. In his 
veto message he did not allege that the claim was not just, due, and unpaid, but, as I 
have said, he vetoed it upon the ground that it would exhaust the Choctaw treasury 
and impair the school system. That was nine years after LeFlore and McCurtain 
were appointed. 

Mr. Burtness. Are you representing the claimants in any of these cases pending 
now? 

Mr. Gore. Yes, sir. 

Mr. Burtness. When do you expect those cases to come to trial? 

Mr. Gore. I believe the court meets in September. 

Mr. Burtness. Of course, those cases will determine the question as to whether 
there is a valid claim against the Choctaw Nation; that is, whether McCurtain and 
Le Flore actually misappropriated the money or not. That question has not yet been 
determined. 

Mr. Gore. I think that is foreclosed now. That question will not arise. 

Mr. Burtness. If I understand the situation correctly, the question that has been 
settled is this, that McCurtain and Le Flore were agents of the Choctaw Nation and 
that their actions are not necessarily binding upon the four delegates. 

Mr. Gore. Yes. 

Mr. Burtness. But has the question been determined as to whether McCurtain 
and Le Flore actually misappropriated the funds or not? Is that not the first question 
to be determined in the trial of this case? 

Mr. Gore. I do not think, in the light of those decisions, that is the question now. 
The Court of Claims when it heard this Garland case on its merits rendered judgment 
for $94,000; that is when it was heard on its merits. That judgment was set aside, not 
on the merits but on the point of law that they were delegates and not agents, and that 
the action was brought on a contract rendered, and that action can not be amended by 
virtue of the authority conferred in the act. 

Mr. Burtness. Will those cases that are now pending be tried on the theory of the 
quantum meruit or on the theory of competence? 

Mr. Gore. Yes. The Court of Claims dismissed on the ground that the Claim accord¬ 
ing to credence and the evidence was based on the contract and that an act of Congress 
authorized to hear the quantum meruit. The Court of Claims dismissed it. The 


12 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


Supreme Court held that was technical and the record showed that service had beeii 
rendered and that they ought to be paid for, if rendered, and we believe they were. 

So the only question now in the light of the record which the Court of Claims can 
determine is how much is due. Thev have heard it on that basis once and found 
$94,000 due. 

Mr. Burtness. In the event you are authorized to commence this action, is it your 
theory that you would proceed on the quantum meruit and not on the law of contract? 

Mr. Gore. In the light of the decision, but we did not put that in the resolution. 
There was error in the drawing of the resolution, and the Department of the Interior 
has suggested two amendments. One is that which specif cally relates to the claim 
growing out of the net proceeds, but 1 do not think the direction as to the quantum 
meruit ought to be included in the light of the decision of the Court of Claims and the 
decision of the Supreme Court. 

Mr. Burtness. Offhand it looks to me this way, that if these delegates are en¬ 
titled to anything they are entitled to 20 per cent of the original amount recovered 
and that is the contract, and the theory of quantum meruit can not possibly enter 
unless it can enter as among the delegates themselves, for the purpose of determining 
what amount each one of them is entitled to. If that is the case, then for the protec¬ 
tion of the Choctaw Nation, it seems to me that all of them should be forced to inter¬ 
vene in one action and get them altogether and get the whole matter determined in 
one case, so that the court could allocate the amount that each one would be en¬ 
titled to, if they are not entitled to some amount less than they would have been 
paid. 

Mr. Gore. I assume they would be entitled to practically the same amount less 
deduction of any payments that might have been made. I think probably some 
payments were made in respect to expenses. 

Mr. Burtness. It seems that McCurtain and Le Flore proceeded on the quantum 
meruit basis as between the individual delegates and recovered the total amount 
based upon contract as against the nation. 

Mr. Carter. That may be correct, Mr. Chairman; that may be exactly what 
occurred. 

Mr. Burtness. At any rate, your point is this, that you do not think that, you 
should be tied down by this bill to proceeding necessarily on the theory of quantum 
meruit or necessarily on the contract. Let that be in your discretion when the heirs 
commence action'/ 

Mr. Gore. That would be my judgment about that in the light of what the Court of 
Claims held. 

Mr. Burtness. Is there anything further, Senator? 

Mr. Gore. 1 do not believe there is except I would refer again to the recommenda¬ 
tion of the Interior Department. 

Mr. Burtness. Is that all? 

Mr. Carter. Yes. 

Mr. Gore. That it should be limited to the compensation growing out of efforts to 
secure payments in connection with the net proceeds, and they suggest that the right 
of appeal be given to either party. We think they would have that right under general 
law, but there can not be any objection to putting it in this act. 

Mr. Burtness. This hearing will be adjourned, if there is no objection, until 
Mr. E. O. Clark, attorney for the Choctaw tribe of Indians has opportunity to appear. 

(Thereupon, the subcommittee adjourned to meet again at the call of the chairman.) 


Subcommittee of the Committee on Indian Affairs, 

House of Representatives, 

Tuesday , September 12, 1922. 

The subcommittee met at 4 o’clock p. m., Hon. Olger B. Burtness, presiding. 

Mr. Burtness. The purpose of the meeting to-day is to hear Mr. Clark, attorney 
for the Choctaw Nation, and I might mention that since the last hearing on this 
matter, the Senate has passed a bill substantially similar to the one before this com¬ 
mittee, that bill having been passed last Saturday. That bill, however, was amended 
in such a way as to include the heirs of Peter Folsom as well as the heirs of Israel 
Folsom. 

Mr. Clark, we will be glad to hear you at this time. 



RELIEF OF HEIRS OF ISRAEL FOLSOM. 13 

STATEMENT OF MR. E. O. CLARK, ATTORNEY FOR THE CHOCTAW 

NATION. 

Mr. Clark. Mr. Chairman and gentlemen of the subcommittee, I have been 
directed by the chief of the Choctaws to appear here in opposition to this bill, H. R. 
7546, and to urge as strongly as possible against the passage of the bill or against the 
reporting of the bill by this subcommittee. No doubt you gentlemen are familiar 
to some extent, at least, with the history of this matter. Senator Gore, representing 
the claim of the heirs of Israel Folsom, appeared before you on April 8 of this year, 
and left with you a statement or memorandum in writing, and he also made a state¬ 
ment to the committee, as I understand. 

Mr. Burtness. You have had access to the transcript of that statement? 

Mr. Clark. Yes, sir; I have it here before me. 

Mr. Burtness. Therefore, you are in a position to reply specifically to the con¬ 
tentions made by the proponents of the bill. 

Mr. Clark. L es, sir. Now, I think that it might be well, Mr. Chairman, for me 
to briefly go into the history of this matter. I will do it as briefly as possible, in order 
that we may get a grasp of the facts out of which this whole litigation arises. 

In 1853 a delegation was appointed by the tribal authorities under an act of the 
council to come to W ashington and negotiate with commissioners of the United ftates 
for a settlement of the differences between the United States and the Choctaw Tribe, 
and of all claims made at that time, or that were being made at that time, by the tribe 
or by individual members of the tribe. An act of the council was passed naming four 
men, of which number was this man, Israel Folsom, in behalf of whose heirs this bill 
has been offered. 

Mr. Burtness. Inasmuch as the Senate has already passed a bill in which the 
heirs of Peter Folsom are included, from time to time in your statement will you 
please give us your views in regard to the claim of the heirs of Peter Folsom as well as 
of the heirs of Israel Folsom? 

Mr. Clark. I will do so. 

Mr. Burtness. Peter Folsom, as I understand it, was not one of the original four? 

Mr. Clark. He was not one of the original number. Now, that act was passed some 
seventy-odd years ago, or the act creating this delegation, and I want to read that act. 

Mr. Burtness. That is an act of the legislative assembly of the Choctaw Nation? 

Mr. Clark. Yes, sir; of the Choctaw Nation. 

Mr. Jefferis. What is the date of it? 

Mr. Clark. November 9, 1853. It reads as follows: 

“Sec. 9. Whereas the Choctaws were and ever have been dissatisfied with the man¬ 
ner in which the treaty of Lancing Rabbitt Creek was made, owing to the many cir¬ 
cumstances which were created to force him into it, and owing to the exceeding 
small and inadequate amount which was given as payment for their country; and 
whereas a large number of claims on the United States, arising under the fourteenth 
and nineteenth and other articles of the treaty of 1830, are still remaining unpaid; and 
. whereas information has reached the council that the demands of a portion of certain 
claimants have become prejudiced by the unauthorized interference of white men at 
Washington, who, without the knowledge or consent of the claimants, pretend to be 
their attorneys; and whereas the claimants have repeatedly, from time to time, called 
on the council to assist them in procuring what is justly due them from the United 
States; and whereas, in the opinion of the council, a speedy and final settlement 
should be made with the United States of the foregoing specification. Therefore, 

“ Resolved , That P. P. Pitchlynn, Israel Folsom, Dixon W. Lewis, and Samuel 
Garland be, and are hereby, appointed delegates, and fully empowered to represent 
and to institute, in behalf of the Choctaw people, a claim upon the United States, for 
the pay and remuneration for the country which they ceded to the United States Gov¬ 
ernment, east of the Mississippi River, and protect and defend all and every right and 
interest of the Choctaws arising under treaty stipulations or otherwise ; be it further 

“ Resolved , That the said delegates are hereby clothed with full power to settle and 
dispose of, by treaty or otherwise, all and every claim and interest of the Choctaw 
people against the Government of the United States, and to adjust and bring to a final 
close all unsettled business of the Choctaw people with the said Government of the 
United States; be it further 

‘ ‘ Resolved , That in case of resignation or death of any of the said delegation above 
mentioned the chiefs have the power to appoint any person to fill such a vacancy in 
his district ; be it further 

“ Resolved, That the chiefs be required to inform the Government at Washington, 
through the proper channel, of the appointment of said delegation of the nation, of 
their powers, and of the fact that no other person whatsoever is authorized to act for 
or represent Choctaw claimants in Washington; be it further 


14 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


“ Resolved , That the agent for the Government be requested to accompany said 
delegation and to aid them with his counsel and official influence in effecting the 
object of their visit. 

“Approved November 9, 1853. 

“(Laws of Choctaw Nation, 1869, pp. 123-125.)” 

That, Mr. Chairman, is the original act creating this delegation. That was in 1853, 
and the heirs of Israel Folsom are now seeking to have enacted by Congress a bill 
authorizing them to bring suit against the Choctaw Nation of Indians at this late date. 
In 1888 a final settlement and distribution was made of the net proceeds money 
that was finally and ultimately collected from the United States Government after 
a long siege of litigation. It has been over 34 years since the final distribution of the 
moneys that were paid over to this delegation and since the report made by the dele¬ 
gation, or by the successors to the original delegation. During that 34 years, as far 
as I have been able to ascertain, or to find out, or to be informed about in any way, 
the heirs of Israel Folsom have never made any claim upon the Choctaw council at 
any time. Although the Folsom family is one of the largest and most influential 
in a social, political, and business way in that whole country, during all that time, 
or during that period of 34 years, there has never been any attempt, so far as I know, 
on the part of the heirs or the family of Israel Folsom to get a bill passed through 
the Choctaw council or to get one through Congress authorizing them to bring suit. 

Mr. Burtness. Is the Choctaw Nation still maintaining its sovereignty, as formerly, 
or does it have a legislative body in the way that it used to have? 

Mr. Clark. The Choctaw Nation at this time has a chief and tribal attorney, and, 
as I understand it, a legislative body which is not functioning, but which under the 
laws .in force at this time, as I understand it, upon authority of the President can be 
called into session at any time to act upon any matters that it may be called upon to 
act upon by the President. However, so far as its courts are concerned, they have 
been abolished, and practically the only official of the Government that really exists 
and is functioning now is the chief. 

Mr. Burtness. When was the last session of its legislature held? 

Mr. Clark. I think it was about 1906, or somewhere along there, or probably 1907. 
Now, Mr. Chairman, this delegation was appointed, as stated in the resolution here, 
for the purpose of coming here to the city of Washington and adjusting all claims, 
including the individual claims of Choctaw Indians, and all claims of the tribe. They 
came here for that purpose. 

It must ha^e been in the contemplation of the council at that time, and in the con¬ 
templation of the Choctaw people, in view of the justness of their claims and their 
rights under the fourteenth and nineteenth articles of the treaty of 1830, under which 
articles the principal claims for damages against the Government of the United States 
were made—as I say, it must have been in the contemplation of the council and of 
the Choctaw people that it would be a very easy matter for this delegation to come to 
Washington and get justice or to get a settlement from Congress. According to the 
testimony in the companion cases that have already been brought and are pending in 
the Court of Claims and in the Supreme Court, they came here in 1854, under this, 
resolution, and took up the proposition of trying to settle these matters between the 
United States and the tribe, with reference especially to the lands that were ceded to 
the United States east of the Mississippi. As a result of those negotiations, on June 
22, 1855, I believe it was, the treaty, known, commonly among the Choctaws and 
generally everywhere among people who are acquainted with Indian legislation or 
treaties as the Treaty of 1855, was made. So far as that treaty affects this matter, there 
were especially two clauses, or the eleventh and twelfth articles of the treaty of 1855, 
that should be considered. 

The eleventh article dealt particularly with the claims of the Choctaws as individ¬ 
uals, and not as a nation, against the United States, and authorized the United States 
Senate to take up the matter of the adjustment of the claims of the tribe against the 
United Statesaud to makeanaward. Thatwas in 1855, or itwasin 1855 that that treaty 
was made. Going back just, a little before the making of the treaty of 1855, in the year 
of 1854, or, to be exact as to the date, on November 10, 1854, it. seems that it had 
dawned upon the delegation that came up here and upon the council and the tribe that 
the delegation had a herculean task upon it to accomplish what they had set out to do. 
Therefore, on November 10, 1854, another resolution was passed relative to this delega¬ 
tion which had been appointed under the resolution of 1853, which resolution enlarged 
the powers of the delegation to the extent that it was authorized under the resolution 
of 1853 to make all kinds of contracts and to do all things necessary in connection with 
the putting through of those claims. Now, as I said, on June 22, 1855, the treaty of 
1855 was negotiated., but 1 think it was some time in the next year, probably, before 
it was finally approved. The eleventh and twelfth articles contained an arrangement, 
as I said awhile ago, for the submission of those claims to the Senate for an award. 


RELIEF OE HEIRS OF ISRAEL FOLSOM. 


15 


Shortly after 1855, or after the making of this treaty—I think in Novemker, 1855, 
as it has since developed—-there was a pretended or purported contract made, or a 
unilateral contract, to which the names of only two men, who were purported to have 
been district chiefs of the Choctaw Nation, were signed. That is what is known as 
the 20 per cent contract. Before I pass upon that contract, Mr. Chairman, I want 
to say just this, that until February 25, 1888, there was never any specific recognition 
of the existence of such a contract by the Choctaw Council, and such recognition 
came only at that time after the Senate award had been made, and after the juris¬ 
dictional act had been passed authorizing suits to be brought in the Court of Claims, 
or after the suit had been brought in the Court of Claims, had been tried there, and 
passed on to the Supreme Court of the United States and tried. I sayMhat until 
then there was no specific recognition of what is known as the 20 per cent contract, 
purported to have been dated and to have been made by the district chiefs in 1855— 
there was no recognition of that until February 25, 1888. 

Mr. Burtness. But, Mr. Clark, as a matter of fact, the 20 per cent contract is re¬ 
cognized to the extent of paying 20 per cent of the proceeds realized to the two men 
whom you regard as the successors of the original delegates? 

Mr. Clark. That is true, Mr. Chairman. 


Mr. Burtness. So is it your contention that we should enter into the question as 
to whether this contract for the 20 per cent was either valid or binding, fair or reason¬ 
able, or anything of that sort.? 

Mr. Clark. Well, here is the point, Mr. Chairman: 1 think this committee, sitting 
as the agents of a legislative body, have just as much right to take into consideration 
these matters about which I am attempting to tell the committee as a court would 
have, and I am not going to admit that the decision of the Court of Claims or of the 
Supreme Court of the United States upon any matter, upon any fact, or upon any 
legal proposition in this case should be considered as a precedent by this committee 
in making its report. I think the committee should proceed as a matter of political 
policy rather than as a matter of strict technical law, and that is the reason why I 
want to dwell a little bit at length upon the history of this proposition. 

Mr. Burtness. If you think it is necessary, it is all right; but what occurred to me 
was this: That we are confronted with a situation where it seems to have been gener¬ 
ally recognized that the people who were responsible for prosecuting these claims to 
their final conclusion were entitled to 20 per cent, and that it is now rather a question 
as to whether 20 per cent has actually been paid by these two men—1 have forgotten 
their names for the minute—who received the money, and whether they distributed 
it in such a way that the heirs of Peter and Israel Folsom are foreclosed at this time, 
or whether Peter Folsom and Israel Folsom received what actually belonged to them, 
and questions of that sort. 

Mr. Clark. I will come to that and discuss that feature. I suppose there is not any 
question that the Choctaw Nation has been out the 20 per cent—the Choctaw Tribe— 
and right in that connection, Mr. Chairman and gentlemen, I want to say that in 
the collection of a just debt from the United States Government that is not all the 
tribe has been out: it was out 30 per cent in addition to the 20 per cent on account 
of an attorney’s fees paid to an attorney who was employed by this same delegation. 
In other words, the Choctaw Tribe and the individuals had to pav 50 per cent of 
the net proceeds claim before it was ever distributed to the individuals of the Choc¬ 
taw Nation to whom it was finally adjudged to go. Now. the tribe has been out the 
20 per cent and the 30 per cent, totaling 50 per cent, on claims that were made under 
the fourteenth and nineteenth articles of the treaty of 1830. 

Mr. Burtness. I agree with you that the tribe was absolutely held up, Mr. Clark. 
It is an outrage that 50 per cent could be taken, whether it be for attorney’s fees, 
delegate fees, or anything else, and it has cost the tribe plenty up to this time; there 
is no doubt about that, but that still does not settle the question as to whether Peter 
Folsom and Israel Folsom got what they were entitled to. 

Mr. Clark. Mr. Chairman, as you seem to be particularly interested in that propo¬ 
sition, I will proceed to the discussion of it, so that I may not take up too much time 
on this other phase of the case. According to the testimony in the other cases, Israel 
Folsom, whose heirs are now asking for this legislation, was paid, in 1888, $45,894.29. 
Now, I do not know whether Senator Gore or the persons who are representing the 
claimants, the heirs of Israel Folsom, will admit that fact or not. 

Mr. Burtness. That has been established before this committee. 

Mr. Clark. As to the amount paid Peter Pitchlynn, $107,311.29, as shown in this 
statement, that has been admitted in that suit to be correct. That amount was 
paid to the heirs of Israel 1 olsom in 1888, according to all the testimony in the Pitch¬ 
lynn and Garland cases, and according to that testimony the tribe had a settlement 


21241—22-2 



16 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


with the delegation in 1861; and I think the record will show in that case that accord¬ 
ing to the statement contained in Peter Pitchlynn’s will the Choctaw Nation in 1861, 
after the treaty of 1855 had been negotiated, in which were contained articles 11 and 
12, which made provision for the Senate award—after that the Choctaw Nation had a 
settlement with all of them in 1861 and settled all of their differences, paid them in 
full—that is, had a settlement—but they did not pay them in full. It appears from 
the testimony that there was probably about $10,000 due each one of the delegates 
at that time, 1861. 

Mr. Burtness. That was not under this 20 per cent contract, though. 

Mr. Clark. That may be true, Mr. Chairman, but at that time the 20 per cent 
contract had been made. If the record is to be believed, it was made in 1855, and this 
was in 1861. That is what I was starting to say a while ago, that there is no specific 
recognition of the existence of any such contract known as the 20 per cent contract, 
except a slight reference, if it may be said to be a reference to that contract, in the 
act of the council in 1873. There was no specific reference to such a contract until 
February 25, 1888, when it was approved. Now, if there ever was an approval of 
the so-called 20 per cent contract, it was on February 25, 1888. Now, here is what 
I am trying to say, Mr. Chairman, that Israel Folsom was settled with in full in 1861, 
and all the other delegates. In other words, an account was stated; a settlement was 
made. 

I want to read you a portion of the record in the Garland case, and a portion of the will 
of Peter Pitchlvnn, in order to show that fact. It is found on page 57 of the record in 
the case of Garland v. The Choctaw Nation, No. 30252, Court of Claims, United States. 
Reading from the ninth article of the will of Peter Pitchlynn, here is what he said—the 
will bearing date January 1, 1881: 

“The Choctaw Nation owes the delegation”— 

That is, the delegation of 1853— 

“as shown by the act of council making the settlement with them November 1, 1861, 
the sum of $84,394.23. Of this sum, $14,140 was due to J. T. Cochrane; so that the 
balance actually due the delegation was $70,254.23, one-fourth of which belonged to 
me. Of this $70,254.23, $20,260 was for gold loaned to the nation at 8 per cent per 
annum. This $20,260 was paid back to the delegation in 1862 in Confederate money, as 
I understand, which le’ft $49,994.23 due us in 1862. 

“In 1866 I received from Allen Wright, national treasurer, $9,583, according to his 
figuring, which I used to pay expenses in the prosecution of the net proceeds claim. 
This reduces the amount now due the delegation to $40,411.23, my one-fourth of which 
is $10,102.81.” 

I think we can reasonably presume, Mr. Chairman, that on January 1, 1881, if any¬ 
thing was due the heirs of Israel Folsom, it was $10,102.81, on that date, especially 
as Pitchlynn says that in November, 1861, the delegation was settled with, and I 
think we might conclude from his statement here and argue that $10,102.81 was all 
that the heirs of Israel Folsom would have been entitled to. 

Now, according to the only testimony there is in this case anywhere, Israel Folsom 
only acted as a delegate one year after 1861. namely, during the year 1867. Now, 
Mr. Chairman, since that time, as I stated a while ago, Israel Folsom’s heirs have been 
paid $49,894.29. 

Mr. Burtness. When did Israel Folsom die, if you know? 

Mr. Clark. I am not able to state, Mr. Chairman. Now, that suggests this to me, 
Mr. Chairman, that that is the trouble in this case, and that is why I am earnestly 
urging this committee not to report this bill, because this goes back for 78 years since 
it first started, and it has been 34 years since final distribution was made by Edmund 
McCurtain and Campbell LeFlore, the men through whom these payments were made. 
Now, they are all dead and there is no testimony available; everything is left to 
chance and guesswork. 

There is no testimony in this case as to the services rendered. The Garland bill is 
based on quantum merit, and the only evidence of any services performed that were 
relied upon by counsel in that case was the mere fact that on February 25, 1888, the 
council approved the so-called 20 per cent contract. We can not get any testimony 
and they can not get any testimony, as far as that is concerned, to rely upon, and all 
they have relied upon in the case in the Court of Claims and the Supreme Court 
has been that contract of February 25, 1888. 

Mr. Burtness. Mr. Clark, has there been any evidence as to the receipts that were 
given by the different people who received money from McCurtain and LeFlore; that 
is, receipts given by any of these men who have been named as delegates, either Peter 
or Israel Folsom or Pitchlynn or Garland? 

Mr. Clark. Mr. Chairman, o,f course there has been no occasion for the production 
of receipts in the Israel Folsom matter, because that is only pending in the House 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


17 


and has not been in court, but I have here, from the deposition of Sophia C. Pitch- 
lynn some receipts which Miss Pitchlynn offered in evidence when her testimony 
was taken here last year. It was difficult for us to understand why she should have 
kept a receipt or why her mother should have kept a receipt, but they offered some 
instruments which purported to be receipts. One of them appears on page 52 of the 
record in the case of Pitchlynn v: the Choctaw Nation, No. 30532, Court of Claims. 
One of those receipts reads like this, Mr. Chairman: 


“Washington, D. C., August 23,1888. 
f [ om M - W * Chollar, as agent for the Choctaw Nation, the sum of $34,- 
li 3./ (>, being the amount awarded to me by the Choctaw delegation, as an heir of the 
late P. P. Pitchlynn, deceased, and this receipt shall be considered full payment and 
satisfaction of all claims against the sum of $107,311.29 received from the said nation 
by the said M. W. Chollar for the purpose of settlement with me as said heir.” 

And a similar receipt was signed, and appears here as an exhibit to Miss Pitchlynn’s 
deposition, Miss Sophia C. Pitchlynn. 

Now, we were unable to find any documents among the files of the old Choctaw 
government or among the papers of Campbell Le Flore, who was really the business 
head of the delegation, consisting of Edmund McCurtain and himself, at the time the 
money was distributed. That is the trouble, Mr. Chairman, with this case. There is 
no proof; there is no intimation anywhere that Israel Folsom ever served as a delegate 
and actually worked longer than five years. Those years were 1854, 1855, 1856, 1861, 
and 1867. In 1861 Israel Folsom and all the other delegates were settled with 
according to the only testimony—and I take it the best testimony—that could possibly 
be obtained, the will of Peter P. Pitchlynn. 

Mr. Burtness. When that settlement was made, Mr. Clark, just what was the 
status of this claim? 

Mr. Clark. In 1861? 

Mr. Burtness. Yes. 

Mr. Clark. The treaty of 1855 had been negotiated; in November, 1855, this pur¬ 
ported contract had been signed, and in the same year, I believe it was, the 30 per 
cent contract had been entered into by this delegation. Everything under articles 
11 and 12 of the treaty of 1855 with reference to the Senate making an award in 
in connection with the matter had been submitted to the Senate, and the Senate 
had made this award in 1859. 

Mr. Jefferis. You say the Senate made the award in 1859? 

Mr. Clark. 1859; yes, sir. Then in 186.1 Congress appropriated $500,000 of money 
to be paid out, to be credited on that award, $250,000 of which was actually paid, 
and according to the act of Congress there were $250,000 in bonds which was to have 
been paid, and it is agreed by everybody that that never has been paid. 

Mr. Burtness. Pardon me, Mr. Clark; in reference to the award of the Senate in 
1856, was there an award made by the Senate? 

Mr. Clark. There was an award, under article 11 of the treaty of 1855, made by 
the Senate in 1859. I will go a little further into that matter, Mr. Chairman. 

Then Congress, in 1861, acting under the Senate award, appropriated $500,000, and 
they paid $250,000 of that to the tribe, but $250,000 of it, according to the act of Con¬ 
gress, was to be paid in bonds, but that was never paid. From 1861 to 1881, a period 
of 20 years, there was a lull in the proceedings, when nothing was done by Congress 
or in the courts, or by anybody, to carry out the award of the Senate, or to carry out 
the provisions of articles 11 and 12 of the treaty of 1855. 

On March 3, 1881, 20 years had gone by, and Congress, I suppose, had decided not 
to pay it, even after the Senate had awarded the money ; after the $500,000 had been 
appropriated and $250,000 actually paid, they had apparently gone to sleep on the 
proposition, but on March 3, 1881, a jurisdictional act was passed, authorizing suit 
to be brought by the Choctaw Nation against the United States for all claims. Then 
it was a new contract was entered into by Peter Folsom, with a man by the name of 
McGee, and Blunt and some other fellows, including a man by the name of Luce, to 
represent the Choctaw Nation in the Court of Claims and in the Supreme Court of the 
United States. The Court of Claims heard that case under the jurisdictional act of 
1881 and rendered judgment for four hundred and eight thousand and some odd dollars. 
An appeal was taken by one of the attorneys, a man by the name of Luce, to the 
Supreme Court of the United States, and the Supreme Court of the United States 
gave judgment to the tribe for something over $3,000,000, with interest attached. 
That is the history of that proposition. 

The only thing that could be contended at all is that Israel Folsom had anything 
to do with was the negotiation of the treaty of 1855. Then in 1861, under the act of 
Congress passed in 1861, trying to carry out the award of the Senate of 1859, $250,000 


18 


RELIEF OF HEIRS. OF ISRAEL FOLSOM. 


was turned over to the Choctaw Nation. Then the delegates came in for settlements. 
They figured, possibly, that that was the end of the litigation. They were settled 
with in 1861. Now, Israel Folsom accepted $10,000. There is no record ol how 
much they got out of the $250,000: nowhere can we go to find out how much they got 
out of that amount of money. But according to this statement, there was only due 
him, in 1881, $10,000; so there could not have been more than that possibly due to 
Israel Folsom. Well, he only served one year after 1861. What could he have done, 
Mr. Chairman? 

From 1861 to 1881 there was a lull in the proceedings; there was nothing done in 
the courts or in Congress or anywhere else. Then, according to this statement Mr. 
Chairman, which I believe everybody will admit, in 1888 his heirs were paid 
$45,894.29. 

Air. Burtness. I wonder if Senator Gore can tell us when Israel Folsom died? 

Mr. Gore. I do not remember, exactly. 

Mr. Burtness. He probably died between 1861 and 1881. 

Mr. Gore. Yes; I think he did. 

Air. Clark. That is a very difficult question you have asked, Air. Chairman, because 
I have heard it asked a number of times in connection with this case, and there is no 
proof which I have been able to find as to when he died. 

That money which Israel Folsom and the other delegates got in 1861 is not all that 
they got, Mr. Chairman. 

The Choctaw Council, by resolution approved November 4, 1857, appropriated 
$8,000 for the delegates— 

“The sum of $2,000 as an advance to P. P. Pitchlynn, one of the Choctaw delegation, 
at Washington City, for personal expenses. 

“The sum of $2,000, as an advance to Samuel Garland, one of the Choctaw delega¬ 
tion, at Washington City, for personal expenses. 

“The sum of $2,000, as an advance to Israel Folsom, one of the Choctaw delegation, 
at Washington City, for personal expenses. 

“The sum of $2,000, as an advance to such person as the governor may appoint to 
fill the vacancy in the Choctaw delegation, to be paid upon his special order to the 
national auditor.” 

Air. Jefferis. That was in 1857? 

Mr. Clark. That was in 1857; yes, sir. The act of council of October 27, 1858, 
advanced to the delegation $11,000, of which $5,000 was advanced to Samuel Gar¬ 
land. Thereafter, on October 20, 1859, the council of the Choctaw Nation again 
appropriated $6,000—$2,000 each to P. P. Pitchlynn, Israel Folsom, and Samuel 
Garland. 

The resolution of October 25, 1859, provided “that said delegates shall not be 
entitled to any pay for such supervision, etc.” 

The Choctaw Council, on October 27, 1860, appropriated $2,000 each to P. P. 
Pitchlynn, Israel Folsom, and Samuel Garland, to enable them to defray their 
expenses in Washington. 

The Choctaw Council, by an act of October 31,1860, appropriated the sum of $2,000 
to the heirs of Dixon W. Lewis, deceased, “for his pay as delegate to Washington 
City from the nation, payable out of any money in the treasury not otherwise ap¬ 
propriated.” 

Now, Mr. Chairman, the $2,000 that was appropriated was the salary that an old 
Choctaw delegate was entitled to who came to Washington. 

Mr. Burtness. Including expenses? 

Mr. Clark. I am not sure about that, Mr. Chairman. 

Mr. Jefferis. Had I ewis died? 

Air. Clark. Lewis died about the first year after the beginning of the work. Now, 

[ am rambling considerablv in this matter, but I want to trv to answer any question 
vhich members of the committee see fit to ask in connection with this proposition. 
I want to make this plain and clear, that I do not consider that this committee or the 
Congress has to follow the judgment of the Supreme Court as a precedent to determine 
whether or not they are going to put the Choctaw Tribe of Indians up against this 
lawsuit. I think that is a political question. I think the question of giving juris¬ 
diction to bring a suit against a sovereignty is as much a noli^h al question as a legal 
question. And I apprehend, too, gentlemen of the committee, that if it were onlv a 
legal question the Congress and committees of Congress are just as able and capable, 
probablv, to pass upon those questions as the courts would be. 

A great deal has been said about the decision of the Supreme Court of the United 
States in this case. Let us see what the Supreme Court decided. The Supreme 
Gourt, in substance, as I understand it, overruled the demurrer that the tribe had 
•wdr* to the petition in this case, or to the complaint. In other words, the tribe took 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


19 


the position at that time—and they still take it, Mr. Chairman—that this body of men 
was a continuing body, that is, that this delegation was a continuing body. The 
very act of November 9, 1853, that created that body, says that it was a continuing 
body and that it was a body which was supposed to be perpetual or to continue until 
1 ^ S P ur P 03es been accomplished. It is perfectly clear that the legislative body 
of the Choctaw people had had in mind to create a body for the purpose of getting 
results and getting action. 

Mr. Burtness. And the Court of Claims so held. 

Mr. Clark. The Court of Claims so held; yes. 

Mr. Burtness. Some of us might feel that the reasoning of the Court of Claims was 
better than the reasoning of the Supreme Court in that particular connection. In 
fact, what hasty examination I have made of the reasoning of the Court of Claims 
makes it appeal to me very much more than the reasoning of the Supreme Court. 
A et you say we can disregard the opinion of the Supreme Court. IIow can we do that 
very well? That is the supreme law of the land; they have settled the matter, in 
a way. 

Mr. Clark. You can not disregard it, Mr. Chairman, in the matters that have 
already been brought into the Pitchlynn case and in the Garland case, but you can 
see, in the light of this case, in the paucity of the testimony in this case, and the 
laches that the claimants in this case have been guilty of, and the other circumstances 
in connection with this case, that the passage of this resolution would not be right, 
that it is not politic, that it is not fair to authorize suit to be brought against this 
tribe. I think you would undoubtedly come to that conclusion, considering all the 
circumstances, and 1 think it is the duty of Congress to refuse to pass this legislation. 

Mr. Burtness. That would be treating the heirs of Pitchlynn and Garland differ¬ 
ently from the heirs of the Folsoms, for instance. Of course, if an injustice has been 
done in the Garland and Pitchlynn cases, that would not justify a further injustice 
to be done by allowing the Folsom heirs to come in, and yet as between the heirs of 
the various delegates, it would hardly seem fair to allow the heirs of two of them to 
have their day in court and not the others. 

Mr. Clark. Now, Mr. Chairman, does it not appear that the heirs of Israel Folsom— 
in fact, the heirs of all of them—have been guilty of laches and that that ought to be 
taken into consideration by the members of this committee in making up their minds? 
For 31 years they have had this matter pending without ever coming to Congress for 
legislation, when it appeared, because of the decision of the Supreme Court upon a 
purely legal question, and the decision of the Supreme Court had not determined, 
and I hope it will not determine questions of fact involved in the Garland and Pitch¬ 
lynn cases- 

Mr. Burtness (interposing). Have they not determined some facts or at least drawn 
conclusions from some facts? Have they not absolutely determined that McCurtain 
and Le Flore were not successors as delegates, but were simply agents for the Choctaw 
Nation to distribute the money? 

Mr. Clark. They have determined that fact in the Garland case. 

Mr. Burtness. Have they not determined whether McCurtain and Le Flore dis¬ 
tributed the money? 

Mr. Clark. No; they have not. 

Mr. Burtness. But the facts as to that distribution, as I understand it, are not 
particularly in dispute. One of the Folsoms got between forty and fifty thousand 
dollars. He did not get one-fourth of the 20 per cent. 

Mr. Jefferis. Mr. Clark, have you a copy of what is purported to be the contract 
of 1855 9 

Mr. Clark. Yes; I have. There aeems to be about half a dozen of those. That is 
one thing I want to talk about a little bit. There are many things said by the learned 
judge who rendered the decision in the Supreme Court to be taken into consideration 
in this case. 

Mr. Burtness. I believe we have a copy of that contract in the report furnished 
by the department; I think that is already in the record. 

Mr. Clark. That is true, 1 believe. 

Mr. Burtness. That will appear in the printed record; so, unless there is some 
specific point that you want to bring out now with reference to the language. I do not 
think it will be necessary to read it again. 

Mr. Clark. I have only the report of the department; I have not the exhibits 
attached. I want to read the purported agreement. 

Mr. Jefferis. This is the agreement of 1855? 

Mr. Clark. Yes. It says: 

“We, the undersigned chiefs, do hereby agree that the delegates, viz., P. P. Pitch¬ 
lynn, Israel Folsom, Samuel Garland, and Hickson W. Lewis, shall receive 20 per cent 


20 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


upon all claims arising or accruing to the nation or to individuals undei; the treaty of 
June 22, 1855, for their services in negotiating said treaty and for other services which 
are to be rendered hereafter at Washington. But it is distinctly understood and 
agreed upon that said delegation are to receive no fees for the lease money nor from 
the funds which the Chickasaws are to pay for jurisdiction granted them in the treaty. 
In testimony whereof we hereunto set our hands and seals. 

“Given this the 21st November, 1855. 

“N. COCHNAUER. [SEAL.] 

“George W. Harkins, [seal.] 


“Approved as required by the 
the 16th day of October, 1868. 


third section of the schedule of the constitution this 
“Allen Wright, P. C. C. N.” 


Mr. Burtness. Who were the people who signed that? 

Mr. Clark. It is claimed that N. Cochnauer was a district chief. It is also claimed 
that George W. Harkins was a district chief. That purports to have been signed on 
the 21st day of November, 1855. 

I have here—this has never been offered in evidence—a photostatic copy of what 
purports to be the contract, or a copy that I got from the files in the superintendent’s 
office at Muskogee. 

Now, there is a peculiar thing about this contract, gentlemen. In some cases it is 
referred to as being dated the 2d day of November, 1855, and in other places as being 
dated the 21st of November, 1855. In some places the copy purports to have been 
sealed on a certain side of the contract, and in other copies on the other side of the 
contract. In certain of the copies that have been exhibited in those other cases, 
there are differences, not in substantial, but in minor details, and in the arrangement 
of the language in the body of the contract. 

Mr. Burtness. The original contract was in the English language, was it not? 

Mr. Clark. Yes, sir; it was in the English language. 

Mr. Burtness. Then, it is not a matter of translation? 

Mr. Clark. No, sir; I suppose not. I say “the original contract,”- but I do not 
know and nobody knows where the original contract is. There has been an effort to 
testify that the contract or the instrument purporting to be the original contract was 
found in 1892, 1 think it was, in the national secretary’s office. 

Mr. Burtness. Is this paper, of which you have a photostatic copy, the one that 
purports to be the original contract? 

Mr. Clark. Yes, sir. Now, I want to impress this upon the committee, that after 
the treaty of 1855 had been negotiated this purported contract was made. It is 
unilateral. None of the so-called delegates of 1853 appear on it. It purports to have 
been made on the 21st of November, 1855, and is signed by the name “ N. Cochnauer,” 
with a scroll for a seal, and by the name “George W. Harkins,” with a scroll for a seal. 
Then, 13 years after that, it comes along and purports to have been approved by Allen 
Wright, who at that time was the principal chief. It reads, “Approved as required by 
the third section of the schedule of the constitution, this 16th day of October, 1868.” 
The original contract purports to have been signed on November 21, 1855, by the two 
chiefs. It was not a contract—or it was not a valid contract. When those two district 
chiefs signed it, it was not valid, nor when Allen Wright signed it in 1868. 

Mr. Jefferis. You are referring to the one that was found? 

Mr. Clark. Yes, sir. It never had any validity. That contract never had any 
validity until February 25, 1888. 

Mr. Burtness. Your position is that the principal chief did not have authority 
to ratify it? 

Mr. Clark. The principal chief had no authority to ratify it, except as authorized 
by the council. 

Mr. Burtness. And the act of the council was passed in 1888? 

Mr. Clark. Yes, sir; in 1888. 

Mr. Jefferis. As I understand it, you claim that there are differences in the copies 
of the contract purported to have been made along in 1855? 

Mr. Clark. Yes, sir. 

Mr. Jefferis. And you claim that there was a settlement made by the Choctaw 
Nation with this delegation in 1861? 

Mr. Clark. On November 1, 1861. 

Mr. Jefferis. And that the accounts were stated? 

Mr. Clark. Yes, sir. 

Mr. Jefferis. And that they received some money at least? 

Mr. Clark. Yes, sir. 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


21 


Mr. Jefferis. Now, then, what have you got to say about this purported recog¬ 
nition of the contract in 1888, or what is the language of that recognition? Have you 
that language? 

Mr. Clark. Yes, sir; I have that. It is the act of February 25, 1888. 

Mr. Jefferis. That is the act of the Choctaw Council? 

Mr. Clark. Yes, sir; approving and ratifying the contract. 

Mr. Jefferis. Let us heir what it says. 

Mr. Clark. It reads as follows: 

No. 6. An act to provide for the payment of the delegates of 1853 for their services 
in the prosecution of the net proceeds, claims, and for other purposes. 

“Whereas the delegates of the Choctaw Nation of 1853, composed of P. P. Pitchlynn 
and others, have recovered from the United States in favor of the Choctaw Nation for 
$2,858,798.62; and whereas under the contract of the Choctaw Nation with said dele¬ 
gates, dated November 2, 1855, it is entitled to be paid 20 per cent of said judgments; 
now, therefore, J ° 

“Be it enacted by the general council of the Choctaw Nation assembled: 

“Section 1. That the sum of 20 per cent of the amount appropriated by Congress as 
payment of said judgment is hereby appropriated out of said fund and directed to be 
paid to Campbell Le Flore and Edmund McCurtain, delegates and successors to P. P. 
Pitchlynn and other delegates of 1853 to enable them to pay the expenses and dis¬ 
charges the obligation in the prosecution of said claims and to settle with the respective 
distributees of said delegation.’’ 

Mr. Purtness. There can not be any question but that the Choctaw Nation at that 
time intended that to be a full and complete settlement. 

Mr. Clark. Especially in view of what follows. 

Mr. Burtness. And of everything that came up by virtue of the prosecution of 
those claims. 

Mr. Clark. Yes, sir. That is not all the resolution, and that is made especially 
clear from the resolution further on down. It continues: 

“Sec. 2. Be it further enacted , That the sum of $23,395.39, being the balance due 
the delegation under the settlement of November, 1861, is hereby appropriated out 
of said fund, less 10 per cent on $1,500.” 

There, I want to stop to say, is another statement or recognition of the fact that 
there was a settlement on November 1, 1861, with those delegates. The other 
element of that is contained in Peter Pitchlynn’s will, which I read to you awhile 
ago. The act continues: 

“Sec. 3. Be it further enacted , That the said sums shall be paid to Campbell Le 
Flore and Edmund McCurtain, delegates of the Choctaw Nation, successors to P. P. 
Pitchlynn and others, and when so paid shall be accepted as the complete payment 
and a final discharge of all debts and obligations of the Choctaw Nation to said dele¬ 
gation under said contract.” 

Now, Mr. Chairman, I want to impress this fact upon the committee: Here was a 
delegation extending over a long period of time that the Choctaw Nation was about to 
make a settlement with; here was a delegation that was given almost unlimited power 
to make contracts with various individuals; it was given that power under various 
resolutions; here was a delegation which was made a continuing delegation; it was a 
continuing delegation, and the recognition of this contract shows that it was the pur¬ 
pose of the Choctaw Council and of the Choctaw people to treat with it as a delegation. 
Now, the members of the council and the Choctaw people had no way on earth of 
determining the obligations that had been entered into by this delegation, and, there¬ 
fore, in order to make sure and certain that the Choctaw Nation should, upon the 
payment of this 20 per cent be absolved from all further obligations and claims that 
might be made against them by any person claiming to have a contract with this 
delegation, they turned this money over to those delegates, or to the two men sur¬ 
viving on this delegation, with the express understanding that it was paid to them 
in order to absolve the Choctaw Nation from any further obligation. That was the 
purpose of it. 

Mr. Burtness. At that time were Pitchlynn, Garland, and Folsom all deceased? 

Mr. Clark. All were deceased, as I understand it. 

Mr. Burtness. Where were their heirs at that time? Were they members of the 
tribe? 

Mr. Clark. The Garland, Pitchlynn. and Folsom families, or the families of both 
Peter and Israel Folsom, as I said awhile ago, are the most influential families of 
Indians in that country. 

Mr. Burtness. Do you know whether any of those heirs were members of the 
council at that time? 


22 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


Mr. Clark. I think that Davy Crockett Garland was. I think the testimony in 
the Garland ca: e shows that he was a member just preceding or succeeding that time, 
or a long about that time. 

Mr. Burtness. Almost of necessity they must have had some knowledge of it. 

Mr. Clark. They had knowledge of it. They received from this delegation money. . 
There is no question about that. Pitchlynn and Garland received money, and I 
think the testimony will show that fact. 

Mr. Burtness. I think Senator Gore made the statement that Israel Folsom had 
received $40,000, but that that was only a quarter of what he was entitled to. 

Mr. Clark. Here is another proposition: The Choctaw people are insisting all the 
time upon a final closing and winding up of their affairs. I know it is said, “Let 
these men bring their suits, and wind it up, ’ ’ but that will not be the end of it. There 
are pending against the Choctaw Nation now suits enough to practically absorb the 
tribal property of that nation. There are suits enough to take all that they have, 
unless they can sell their coal lands, and there is no prospect at this time of being 
able to sell them except at a great sacrifice. We do not want to be put up against 
the proposition of fighting these cases for years and years through the Court of Claims 
and through the Supreme Court, when it appears that they have been guilty of laches. 
They had lain here for 34 years, after the distribution of the money had been made 
to that delegation, and they never asked the Choctaw Council to make an appropria¬ 
tion or to do anything in regard to it. They never came to Congress and had a juris¬ 
dictional act passed during all that time, but now after all the people to whom this 
delegation paid some money, the payment of which is being questioned by the heirs 
of Israel Folsom, are dead, and we have no way of making proof they ask for this 
relief. We would simply be left to conjecture upon that proposition. 

They want to stand upon the propcsition that there was a paper that purports to have 
been signed as a contract. They dug it up somewhere—we do not know where—and 
there are different kinds of copies of that purported contract. We do not know 
whether it is authentic or not. It is dependent upon the act of September 25. 1888, 
although that act, which is the only act that ratifies and authorizes that contract, 
specifically limits it and says that the payment of the money to that delegation shall 
absolve the Choctaw people from all further obligations. Now. it will be argued that 
that was a slick way of defeating the heirs of those delegates, but you can see that 
there was policy and wisdom exhibited by the Choctaw Nation in making such a pro¬ 
vision. It shows that, there was an obligation that was being finally closed up and 
settled, or an obligation that had been in existence from 1853. 

Mr. Burtness. Of course, it is claimed that the Choctaw Nation regarded those two 
men, McCurtain and Le Flore, as the successors of the original delegation. 

Mr. Clark. That being true, will this committee and will Congress allow to be suc¬ 
cessfully urged and argued here that on account of the fact that the Supreme Court 
took the technical position that that delegation was an agency of the Choctaw Nation 
instead of a delegation—will the mere fact that the court took that position be taken 
as a precedent that, will impel you to enact this legislation? 

Mr. Burtness. That is the very gist of this bill, in my judgment, at least, and we 
have got to determine that. 

Mr. Clark. I do not think there is a gentleman on this committee who can not 
readily see that from the very beginning, or from the very initial act to the last act, 
and all along, it was the purpose of the Choctaw Council to create a delegation and a 
continuing delegation there, as to which delegation the settlement with reference to 
this 20 per cent was to conclude the Chocataw Nation as to any other demands. They 
may have gone about doing it crudely, or thev may have done it in a not very lawyer¬ 
like manner, but they have done it. They have expressed their purpose, and it is 
evident to anybody that reads it that that was their intention. 

Mr. Burtness. You have emphasized the matter of laches. Can you tell us when 
the first attempt was made to get a jurisdictional bill passed through Congress by any . 
one of the sets of heirs? 

Mr. Clark. I do not know, except that I believe the Pitchlynn Act was in 1906 and 
the Garland Act in 1908. 

Mr. Burtness. That would be about 20 years after the final award? 

Mr. Clark. Yes, sir. 

Mr. Jefferis. Do you consider this item of $23,395.39 mentioned in the act of 1888 
a balance due that delegation? 

Mr. Clark. My understanding is that that must refer to the same settlement that is 
referred to in Peter Pitchlynn’s will, and that that was the balance due these delegates 
from the settlement of November, 1861. 

Mr. Jefferis. Do you understand that in 1888 those four original delegates were 
dead? 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


23 


Mr. Clark. As I understand it, they were all dead. There is no doubt about that. 

Mr. IjUrtness. They must have been, because McCurtain and Le Flore were the 
only ones mentioned. Now, as to the settlement of 1861, you do not claim that there 
was a settlement of all possible rights arising from the prosecution of those claims, 
but tliat it was rather a settlement of everything that had been done up to that date? 

‘ Clark. I think so. I think that is all we could claim for, or a settlement up to 
that date. r 

Mr. Burtness. So far you have said nothing about Peter Folsom and his connection 
with this matter. He is not directly in this bill, as it is introduced in the House, 
bU M V S really before the committee, because he was included in the Senate bill. 

Mr. Clark He was paid exactly the same amount, according to the settlement 
made by the delegation, that the Israel Folsom heirs were paid. 

Mr. Burtness. And when did he become a delegate? Was he a successor of Lewis? 

Mr. Clark. I am not sure whether he was or not, but I believe he was the suc¬ 
cessor of Lewis. You see, from 1861, when Congress appropriated $250,000, and when 
they must have had a settlement, to 1881 there was not anything done—that is, as 
far as the record shows—and it does not appear that anything could possibly have 
been done. 

Mr. Jefferis. Do you know what became of the $250,000 that was paid in 1861? 

Mr. Clark. I do not know anything about it and I have no records about it, except 
the little reference that is made about the settlement, the balances, etc. 

Mr. Burtness. Are Peter and Israel Folsom related? 

Mr. Clark. I do not know whether they are or not. I suppose, Mr. Chairman, it 
would not be asked, even if legislation were granted in this matter, that a claimant 
be authorized to bring suit f,or services and expenses except just what was merited. 

Mr. Burtness. The bill does not limit the manner of bringing action, either to a 
quantum meruit basis or to a contract basis, and the request of the proponents of the 
bill is for the bill substantially as drawn, which, it seems to me, would leave it to 
the pleader as to whether he wanted to proceed on a contract basis or on a quantum 
meruit basis. 

Mr. Jefferis. Is there any contention on your part that the act of February 25, 
1888, was not passed according to the rules and regulations of the tribe? 

Mr. Clark. Well, I have examined the record on the passage of that bill and it 
looks as though a great many men were paid money by that delegation simply for 
political purposes in passing this legislation through the Choctaw Council. Of course, 
as far as the act being passed regularly is concerned, I do not think there has ever 
been any suggestion as to that at all. 

Mr. Burtness. Naturally these delegates must have had some assistance in prose¬ 
cuting this claim requiring some payment that would be natural and legitimate, I 
take it. 

Mr. Jefferis. Section 4 provides for 30 per cent and then for the 20 per cent. 

Mr. Clark. Do you mean you do not understand the 30 per cent? 

Mr. Jefferis. Section 4 reads as follows: 

Be it f urther enacted , That the sum of 20 per cent herein provided to be paid to the 
delegation aforesaid, and the sum of 30 per cent, heretofore provided to be paid to the 
attorneys shall be accepted as full and final settlement of the amount due under 
their respective contracts and that the remaining half, or 50 per cent of the amount 
appropriated for the payment of said judgment, shall be retained in the Treasury of 
the United States subject to the legislation and requisition of the general council of 
the Choctaw national purposes, and for the payment of the claims of individual Choc¬ 
taws under the twelfth article of the treaty of 1855. ” 

Mr. Clark. Yes; on that date, you see, they just took 50 per cent of the $3,000,000, 
and they handed 30 per cent over to the lawyers that this delegation had employed and 
the fellows who really did the work, as far as that is concerned. 

Mr. Burtness. I was wondering whether the lawyers for the tribes are paid as well 
now and, if so, what chance there would be for a job. 

Mr. Jefferis. Arer there any records anywhere that you would know of to show 
that settlement was made with the lawyers on the basis of 30 per cent? 

Mr. Clark. Oh, yes; the warrants from the Treasury were turned over to them. 

Mr. Jefferis. Warrants of the Treasury? 

Mr. Clark. Yes. 

Mr. Jefferis. How were these sums paid to these delegates—by warrants from the 
Treasury or were they turned over to the two delegates? 

Mr. Clark. Well, I do not know how that was done. 

Mr. Jefferis. Do the records of the department show that at all? 

Mr. Clark. No; that money was paid to the delegation and paid out by the dele- 
' gation, you see. 




24 RELIEF OF HEIRS OF ISRAEL FOLSOM. 

Mr. Jefferis. Then these two delegates got this sum of six hundred and some odd 
thousand dollars? 

Mr. Clark. Yes; that is in the record and there is no doubt about that. 

Mr. Burtness. And, Mr. Jefferis, the report of the bureau shows also to whom the 
six hundred and some odd thousand dollars was actually paid by these delegates. 

y[ Y Qlark Ygs 

Mr. Burtness. The point, as I understand it, is this: That it is claimed by the heirs 
of Garland, Pitchlynn, and the Folsoms that these two men paid these amounts to 
people who were not entitled to them, and by reason of that fact they were short m the 
payments they received. 

Mr. Jefferis. Was the whole of the $600,000 paid out? 

Mr. Burtness. I so understand it. 

Jefferis Is tliO/t tru6^ 

Mr. Clark. Let me make a brief statement in regard to that. Peter Pitchlynn was 
paid $107,311.29; Israel Folsom, $45,894.29; Samuel Garland, $49,894.29; and Peter 
Folsom, $46,953.39. Then there was a delegation known as the delegation of 1866, 
which was the delegation that negotiated the treaty of 1866, after the war. 

Mr. Jefferis. That would make about $250,000 paid out? 

Mr. Clark. Yes. Then it seems that the members of the delegation of 1866 for 
some reason or other received—there were four of them—$2,972.46, which totaled 
$11,889.84. Then there was another delegation known as the eastern boundary 
delegation. To each of the delegates making up this delegation was paid $2,586.12, 
totaling $7,758.36. Then $25,000 was paid to J. G. Blunt and loyal Choctaws. 

Mr. Burtness. Do you know who he was or what he was supposed to have done— 
this man Blunt? 

Mr. Clark. No; and that is the trouble, you see, because all of the people to whom 
these payments were made, I suppose, are long since dead. I have heard of or have 
seen nearly all of the men who are mentioned in this list, but as far as I can now recall 
I do not know of a single one of them who is living. In addition to the payment of 
eleven thousand and some odd dollars to the delegates of 1866, to the eastern boundary 
delegates of seven thousand and some odd dollars and $25,000 to Blunt and loyal 
Choctaws, the delegation reports to the council that they have paid out $107,626.50 
to a bunch of men. It says, “Paid from memorandum of P. P. Pitchlynn.” Now 
first it starts out with J. F. McCurtain, and he was paid $20,000 by this delegation, 
J. F. McCurtain is Jack McCurtain, one time governor of the Choctaw Nation, and then 
a payment was made to Edmund McCurtain. 

Mr. Jefferis. That is a different McCurtain than the delegate? 

Mr. Clark. He was a brother of the delegate. James Thompson, $20,000; Thomas 
Lanigan, $10,000, and so on down the list, a whole bunch of folks there to whom pay¬ 
ments were made or reported to have been made by this delegation. I find that one 
J. J. Weed was paid $396.50, and I notice that he appears as counsel for the Choctaw 
Nation in the case that is reported in one hundred and nineteenth United States, 
page 1. Then I see another man’s name, J. W. Denver, who was paid $5,230. He 
was also an attorney in that case. Now, they questioned those payments. 

Mr. Jefferis. Who did? 

Mr. Clark. Israel Folsom, Garland, and Pitchlynn, Pitchlynn’s heirs. They say 
that should not have been paid, but the men who were members of the delegation 
evidently had some reason for paying them; at least it seems we should presume they 
had some reason. 

Mr. Burtness. Is it your conclusion that all of these different people were agents 
of the delegation in some capacity? 

Mr. Clark. Either that they loaned them money or promised them their political 
influence in helping them to get this bill through of February 25, 1888. 

Mr. Jefferis. Do they account for the full $630,000 or whatever the amount is? 

Mr. Clark. They go on and account for all of it. Then there is another list here 
totaling $85,020, paid on promises made at Tushkahomma. Tushkahomma was the 
capital of the Choctaw Nation, and evidently those are all political debts, because 
the men whose names are listed there were prominent Choctaw politicians in those 
days. 

Now, I just want to refer to one other matter. 

Mr. Jefferis. Are both McCurtain and LeFlore dead? 

Mr. Clark. Yes; they are both dead. 

Mr. Burtness. Were you reared in that country? 

Mr. Clark. Yes; I have lived among them. 

Mr. Jefferis. Do you know how long they have been dead? 

Mr. Clark. Well, Edmund McCurtain has been dead, I guess, about 20 years. 
That is just a guess. 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


25 


Mr. Burtness. How old a man are you? 

Mr. Clark. Forty-four. The Garland and the Pitchlynn heirs say that these 
amounts ought not to have been paid. 

Mr. Burtness. If they did not say that, they would not have a case. 

Mr. Clark. No. Now, here is what Peter Pitchlynn said in the last clause of his 
will, and that ought to be about the best testimony we could get. He says: 

“I don’t owe any Choctaw Indian anything in the way of a personal debt, and 
nothing at all except in connection with the net proceeds claim, as I have shown in 
another statement separate from this, for the information of Folsom and our counsel.” 

That is testimony at least tending to show that the delegation had before it a 
separate statement signed by Peter Pitchlynn, and the statement I have just read is 
from Peter Pitchlynn’s will, made January 1, 1881. In that will he says: 

‘ ‘ I don’t owe any Choctaw Indian anything in the way of a personal debt, and 
nothing at all except in connection with the net proceeds claim, as I have shown in 
another statement separate from this.” 

Keep in mind, Mr. Chairman, that the Choctaw Nation has paid 50 per cent of this 
appropriation, which has extended over a period of 100 years, to get this money. 
Now they are being asked again, 34 years after settlement was made in this case, to 
pay it over again. 

Mr. Jefferis. Is there any known law or custom among the Choctaw Nation, or 
was there at that time any known law or custom whereby these delegates could bind 
the members as well as the council in their settlements? In other words, could the 
council delegate to certain people the power to make a settlement which would bind 
the members of the tribe as well as the people who executed for the tribe? I do not 
know whether 1 make myself clear or not, but this was a tribe at that time. 

Mr. Clark. Yes, sir. 

Mr. Jefferis. Were all of these delegates members of the tribe? 

Mr. Clark. Yes; they were all members of the tribe. 

Mr. Jefferis. Le Flore and the rest of them? 

Mr. Clark. Yes, sir. 

Mr. Jefferis. Did this tribe have any laws of its own as to the manner of dealing 
when somebody was supposed to represent the tribe and could the representatives 
bring matters to a finality? How did they act in finally settling among themselves? 

Mr. Clark. Do you mean with reference to this transaction? 

Mr. Jefferis. No; as to any transaction. 

Mr. Clark. Well, they had courts; they had a legislature; they had a supreme 
court; they had district courts and had county and probate courts. 

Mr. Jefferis. Did that continue to be a fact after 1888? 

Mr. Clark. Long after 1888. 

Mr. Jefferis. Did they have any statute of limitations? 

Mr. Clark. Well, I am not sure about that. 

Mr. Jefferis. If these delegates collected this money in 1888, if that Was the year, 
$630,000, those delegates were supposed to distribute the money to the proper parties. 
Now, suppose the delegates did not distribute the money to the proper parties, was 
there a forum in the Choctaw Nation in which the claimants could bring suit and ask 
for what they claimed to be justly due them? 

Mr. Clark. There was; yes, sir. 

Mr. Jefferis. That consisted of a court? 

Mr. Clark. Yes. 

Mr. Burtness. They could have brought an action against McCurtain and Le Flore? 

Mr. Clark. Yes, sir. 

Mr. Burtness. Could they have brought an action against the nation as such?! I 

Mr. Clark. Not without a jurisdictional bill. I believe it has been held that 
could not be done without a jurisdictional act. 

Mr. Jefferis. In other words, the Choctaw Nation, from 1888 up to 190? at least, 
had courts? 

Mr. Clark. Had courts; yes. 

Mr. Jefferis. And had a legislature? 

Mr. Clark. Yes, sir. 

Mr. Jefferis. These delegates and their representatives or heirs were all con¬ 
nected with the Choctaw Nation? 

Mr. Clark. Yes; they were very prominent people and bound to be so, because- 

Mr. Burtness (interposing). Most of these people were educated men? 

Mr. Clark. Yes, sir. 

Mr. Burtness. Is that also true of the heirs? 

Mr. Clark. I do not know about the heirs. I said yes as to the delegates, but I 
did not know any of the delegates personally, and I do not know whether that is true, 


26 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


but I presume it is, that they were educated men—that is, they had considerably 
more than the average education. 

Mr. Jefferis. Do you say that the heirs of these delegates from 1888 up to 1907, 
if they had any claim against these men, Le Flore and McCurtain, could have brought 
an action in their courts? 

Mr. Clark. They could, Mr. Chairman. There is not any doubt about that. 

Mr. Jefferis. No action was ever brought of any kind? 

Mr. Clark. None, as far as I know, and as far as appears on the record. I will say 
this—it is in evidence, I suppose—that in 1907, I think it was, the heirs of Samuel 
Garland started an act through the Choctaw Council; it went through the council and 
was vetoed by the chief. That was all that was ever done. There was never anything 
done in the way of enacting a jurisdictional act. 

Mr. Burtness. No jurisdictional act was passed? 

Mr. Clark. No. There was an act to pay a certain amount of money, an alleged 
balance claimed to be due Garland, but it never became law. The courts there had 
jurisdiction long after 1888. 

If the committee cares, I can furnish a statement including the constitution and 
the statutes of the Choctaw Nation in force at that time in reference to these courts 
and their jurisdiction. 

Mr. Burtness. I do not think that is necessary because I do not believe that is 
disputed, is it, Senator Gore? 

Mr. Gore. Yes, sir. Of course, I would not want to announce a final opinion with¬ 
out looking into it, but I am inclined to think Mr. Clark must be mistaken, that they 
could have sued without a jurisdictional act. 

Mr. Burtness. That was not the statement. The statement was to the effect that 
they could have sued McCurtain and LeFlore without a jurisdictional act. 

Mr. Gore. They could have done that, I suppose, but I imagine such a judgment 
would have been worthless, if they had gotten it. 

Mr. Burtness. Have you any further statement you desire to make, Senator? 

STATEMENT OF HON. T. P. GORE, ATTORNEY FOR THE HEIRS OF 

ISRAEL FOLSOM. 

Mr. Gore. 1 would like ,to make one or two statements, Mr. Chairman, but I would 
like to preface my remarks by saying this, that I was not advised this hearing was to 
be held to-day until this morning; when I did hear it I was en route to attend a hearing 
before a Senate committee. Therefore. I have no data with me. I might add that, 
judging from the questions of the chairman and his associates, they are just about as 
familiar with the history of this case as I am, or as Mr. Clark is, for that matter. But 
there are one or two points I wish to touch on. 

Of course, the first question is as to whether or not the Choctaw Nation is a legal 
entity that can be sued, or whether it is such a legal entity as could be made suable 
by an act of Congress. I think there is no serious controversy on that point. There 
are several suits now pending in the Court of Claims against the Choctaw Nation. 
Two of these delegates have suits now pending in the Court of Claims against the 
Choctaw Nation. If it were not suable we would not be insisting on an act author¬ 
izing us to sue, and if it were not suable I suppose Mr. Clark would not be seriously, 
resisting a resolution of this sort, because otherwise it would be an idle thing. 

I can appreciate Mr. Clark’s position here. He has been directed by the chief to 
represent the nation. I had intended to say I have no purpose to attribute to either 
Mr. Clark or to the nation any desire to have this matter linger along until the Choctaw 
Nation did become extinct and until the Congress could not authorize a suit against 
the Choctaw Nation. I believe Mr. Clark has indicated that there is a desire that the 
Choctaw Nation should become extinct, and he assigns that as one of the reasons why 
he is opposed to this legislation. 

Now, if these people have a just and valid claim against the Choctaw Nation, they 
ought to be given their day in court before the Choctaw Nation is dead. 

There are several points which Mr. Clark has made that I wish to touch upon briefly. 
This contract was originally made in 1853. Four delegates were then designated, 
Pitchlvnn, Garland, Israel Folsom, and Dickson Lewis. Lewis died soon after and 
Peter Folsom was appointed in his stead. 

Now, the question as to whether or not they are entitled to recovery does not depend 
on an elaborate recitation of this history. I agree with Mr. Clark'in one particular 
and I disagree with him in another particular. I agree with him that this committee 
and the Congress are not bound to follow the decisions of the Supreme Court in de¬ 
termining upon the legislative policy. The decision of the Supreme Court is not a 
compelling precedent upon this committee or upon this Congress as to its legislative 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


27 


duty. \ on arc under no mandate from the Supreme Court, and whatever obligation, 
. an V' T ests u P on you, is a moral mandate, a mandate to see that people who have a 
P lat claim against the Choctaw Nation or who have probable cause to believe that 
they have a just claim, shall have their day in court, and that is the very essence of 
our jurisprudence, and the very essence of justice under our svstem of government, 
that every man shall have his day in court. 

I do not think it is necessary for this committee to find that these two men have a 
valid claim against the Choctaw Nation, and that if you were sitting here as a court 
you would find judgment in their behalf. That is not the point which should control 
your action. You are called upon to consider whether or not this is a serious claim 
made in good faith; whether or not there is probable cause, or whether there is 
reasonable ground to believe that this claim should be presented, whether or not 
equity would be best subserved by allowing the matter to be judiciallv determined, 
or by closing the doors of the courts in the faces of these men. If you find that this is 
not a frivolous claim, that it is a serious claim, that it is a claim that rests upon reason¬ 
able grounds, then it seems to me it would justify this action on your part. 

Mr. Jefferis. According to what Mr. Clark has shown the committee, these two 
men, McCurtain and Le Flore, accounted back in 1888 for the amount of money that 
they received, 8630.000 and for this 20 per cent. 

Mr. Gore. Yes. sir. 

Mr. Jefferis. They stated the names of parties to whom it was paid. They were 
clothed with the authority of delegates, or agents, whatever they were. Would not 
the presumption of law be, after the lapse of so many years, that they had paid the 
money out properly, especially because of the fact that it had not been questioned 
for a period of 30 years? 

Mr. Gore. I do not think on investigation that it will appear it was not questioned. 
My understanding is that back in 1897 the Choctaw Council passed a resolution to 
pay the heirs of Samuel Garland, and throughout the agitation, as I understand it, 
from the date of settlement to this good hour there has been no question about that. 
I think that is one argument in favor of passing this resolution authorizing these 
people to bring suit, while the other two suits are pending. I would like to see them 
all decided at once so that we would not have io keep the matter pending in court 
forever. There are one or two points I would like to take up, and then I will come to 
a more careful consideration of that subject. 

There is a long, intricate history connected with this matter, which I am not going 
to recite to you. There was a settlement which the Senate rendered and an award 
in 1859 amounting to 82,800,000. There was a partial payment made in 1861. These 
delegates were paid a 20 per cent fee, or a portion of it, in 1861, upon a partial payment 
made here. That was on November 1, 1861. The Civil War intervened and the 
matter drifted for a number of years. There was a resolution passed on February 
25, 1888, reciting a balance due of $23,000 on the settlement made in 1861, entirely 
apart from the settlement, as to collections made in 1888. The settlement of 1861 
could have had no relation to the settlement made in 1888, because it was not ascer¬ 
tained then, and not until 1888, how much was due the Choctaw Nation. They had 
no basis upon which to collect the 20 per cent, and as was suggested by Mr. Clark, 
$250,000 was paid in 1861, and a jurisdictional act was not passed until 1881. 

Mr. Jefferis. When did the Senate fix the amount which was owed the Choctaw 
Nation? 

Mr. Gore. In 1859, and in pursuance of that a partial payment -was made in 1861. 
I think the United States claimed it had made a full payment in 1861, so it became 
necessary to pass a jurisdictional act in 1881 authorizing the Choctaw Nation to sue 
the United States in order to determine whether or not the settlement in 1861 was a 
settlement in full. That resolution was passed the House the day when Peter I it« h- 
lynn died, and John G. Carlisle made the closing argument in favor of the resoli ticn. 
Suit was brought in the Court of Claims and recovery was had to the amount of $40C.0CO. 
But an appeal was taken to the United States Supreme Court, and that court reversed 
the judgment of the Court of Claims, and under the judgment in that case the amount 
awarded by the United States Supreme Court, I think, was $3,000,000, including 
principal and interest. 

Mr. Burtness. Following the award of the Senate in 1859? 

Mr. Gore. Yes, sir. The Supreme Court held that the Senate award vas binding 
on the Government. That brings us down to 1888. 

McCurtain and Le Flore were appointed on February 25, 1888, to collect and dis¬ 
burse this 20 per cent fee. As suggested by Congressman Jefferis, the resolution 
recites that they were delegates; but the Supreme Court of the United States decided 
that they were not delegates, but were agents. They paid the $45,000 to the heirs of 
each of the two Folsom’s; Garland’s heirs $49,000, and Pitchlynn’s heirs $100,000. 


28 


BELIEF OF HEIRS OF ISRAEL FOLSOM. 


They did not insist that the settlement of 1861 was final and conclusive. The resolu¬ 
tion of the council directed them to collect this $3,000,000, or the 20 per cent of the 
$3,000,000, and to disburse it. They did collect it, and they did disburse it. They 
made a number of payments, which I challenge. Perhaps they made unwarranted 
payments, or perhaps the claims were not well founded in fact or in conscience; but, 
admitting that they were, if they were claims at all they were claims against the 
nation and not against the delegates, or at least there is no evidence of the fact that 
they were. . 

Mr. Clark has presented several questions as if they were open questions. The 
character of the settlement in 1961 is not an open question. The question as to 
whether or not the two men appointed in 1888 were successors to the former delegates 
is not an open question. That is a closed question that has been closed by the Supreme 
Court. Most of the arguments made have been answered by the Supreme Court or 
some other tribunal. The Supreme Court held that Le Flore and McCurtain were 
agents of the nation and that the nation was bound by their acts, and that when they 
paid 20 per cent to other people than the heirs of these delegates they misappro¬ 
priated the money. That is the substance of the decision. > 

To show that this is not a frivolous claim, the Court of Claims considered the suit 
and decided the suit brought by the heirs of Samuel Garland and returned a judgment 
in favor of the heirs of Samuel Garland in the sum of $94,000, and that was based upon 
a quantum meruit proceeding. It is true that afterwards the Court of Claims set aside 
that judgment on points of law but not on the facts. The heirs of Samuel Garland 
prosecuted an appeal to the Supreme Court of the United States, and the Supreme 
Court reversed the Court of Claims on each of the three points of law raised. The 
Supreme Court reversed the Court of Claims on each point, and 1 have here the de¬ 
cision of the Supreme Court made on June 1 of last year, in which the Supreme Court, 
after reviewing the record, says, speaking of the heirs of Garland, “There should have 
been a recovery, if the nation was liable, and we think it was. ” The Supreme Court 
has stated here that it thinks the nation was liable, and that McCurtain and Le Flore 
had no authority to disburse the money to anybody but the heirs. The Court of 
Claims, when it heard the Garland matter on the facts, decided that $94,000 was due 
the heirs of Garland. There was a miscalculation of about $12,000 in that. It should 
have been about $106,000. 

Of course, there are some minor details as to the various cases. Peter Folsom was 
appointed later than the others, and he survived them all and gave the matter his 
personal attention. 

We have here the decision of the Supreme Court that these men were agents and not 
delegates; that the nation was liable, under the judgment of the court, for their services. 

In 1906 Congress passed a resolution authorizing the heirs' of Peter Pitchlynn to 
bring suit in this matter, after a hearing, I assume, in both Houses, or at least both 
Houses were satisfied that the claim was based upon reasonable grounds. The Court 
of Claims had not decided at that time on the facts—that Garland was entitled to 
$94,000. The Supreme Court had not at that time expressed the opinion that the 
nation was liable. But nevertheless when the facts of the matter were presented to 
Congress they proceeded to give those men their day in court. 

In 1908 Congress passed a resolution giving the heirs of Garland the right to bring 
suit. Congress did not then have the judgment of the Court of Claims for $94,000 in 
behalf of those claimants, nor did they have the decision of the Supreme Court. With¬ 
out having those precedents to guide it, Congress nevertheless felt constrained, in a 
spirit of justice and equitv, to give these heirs an opportunity to go into the Court of 
Claims. If they had a valid claim they could establish it, and if they had not a valid 
claim against the nation, they would not and they will not recover. 

But there are circumstances, it seems to me, which justify you in refusing to dis¬ 
criminate as between these claims and the heirs of these claimants. Two of them have 
been given the rights and prerogatives of American citizens. They have been given 
the authority to have their rights, if they have any rights, presented in court and 
determined. There are two others who stand in substantially the same position. 
Shall the door of justice be closed in their faces? Will Congress elect as between the 
heirs of these claimants and say that unto two justice shall be done, or that, at least, 
they shall have an opportunity to seek justice in the courts, and that the heirs of the 
other two shall not be even given the opportunity to present their claim? 

Mr. Burtness. But suppose we find that an injustice was done in allowing the 
Pitchlynn and Garland heirs to bring their suits, or suppose we believe that, in spite 
of the decision of the courts? Just because we allow an injustice done in two cases, 
would you go to the extent of saying that we should allow it in two other cases? 

Mr. Gore. As I said in the beginning, this is a matter that rests in your discretion. 
It rests entirely in your discretion and your sense of justice and fairness. This is a 
point of conscience—a question of duty which every man must decide for himself. 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


29 


Mr Burtness. I grant you that it does not seem fair to allow the heirs of Pitchlynn 
and Garland to sue and not allow the heirs of Folsom to sue. I do not mean to say 
that I have concluded that, or that I should reach that conclusion, or that I have con¬ 
cluded that it would be an injustice to allow them to come in, but if it was an injustice 
to allow them to come in, why should we allow two more to come in? 

Mr. Gore. I cite the decision of the Supreme Court for whatever it may be worth. 

Mr. Jefferis . If I understand the situation here, I take it that the act of the Choctaw 
Council of February 25, 1888, was not questioned in any way by either side—in other 
words, that that was a legal act on their part, enacted by the proper authority. Now, 
there is not any doubt in my mind that those two men, Garland and Pitchlynn, got 
this $638,000. 

Mr. Gore. Yes, sir ; that is true. 

Mr. Jefferis. It seems to me to be rather immaterial whether they were delegates 
or agents, because they got it as the council directed, or as the nation directed. It 
was in their hands, and if they misappropriated it, of course, the nation would have 
to stand the loss. 

Mr. Gore. Yes. 

Mr. Jefferis. I would like to ask you what you think about the presumption of 
law involved. They filed their report showing the payments made, or accounting 
for all of the $638,000, as I understand it. Now, that having been a matter of record 
all these years, what is the presumption of law? That having been a matter of record 
for all these years, and nothing having been done for, say, a period of practically 
20 years, at least, by anybody, would not that pretty nearly constitute a stale claim? 

Mr. Gore. As affairs go among Indians, I think that would hardly be true. These 
were all members of the Choctaw Tribe of Indians. They were not the delegates— 
they were the children of the delegates—heirs scattered throughout the Choctaw 
country. During the war, or from 1861 to 1881, while the tribe made efforts to recover 
these net proceeds, they were not all recovered until after some 27 years, and I do not 
think that Congress regarded this as a stale claim; it passed the jurisdictional act- 

Mr. Jefferis. Of course this would be from 1888 to 1906. 

Mr. Gore. Yes, about 20 years; but my impression is that there was a good deal of 
activity in connection with the matter in the meantime. In 1897 the Choctaw Coun¬ 
cil passed a resolution to pay the Garland debt. 

Mr. Jefferis. That was in 1897? 

Mr. Gore. Yes. It was vetoed by the governor of the tribe. It was passed by the 
council but was vetoed by the governor of the tribe. The veto was not based upon 
the ground that the claim was not just and due, but was based upon the ground that if 
he approved it and it was paid it would exhaust the school fund and that they 
could not maintain the school system. This matter was not allowed to rest, but they 
tried from time to time in their own way to collect it. In those days this was a Terri¬ 
tory, and I do not think that we should be too exacting with respect to these people. 

Mr. Jefferis. You mentioned something that occurred as late as 1897, and that 
would have been an interval of less than 10 years. 

Mr. Gore. I think we will be able to show when the trial comes on that this agitation 
was a continuous one, without any intermission, as opportunity afforded. 

Mr. Jefferis. Do you know whether or not the Choctaw Nation had any criminal 
law of its own that could have been brought into action against those men for the 
misappropriation of the funds between 1888 and 1907? 

Mr. Gore. I have no doubt they did have. Mr. Clark can answer that definitely. 

Mr. Clark. They had an elaborate criminal code. I say it was elaborate; but it 
was patterned considerably after the laws of the States. 

Mr. Jefferis. Those delegates, as I understand it, had power, in the first instance, 
to contract with different people for assistance? 

Mr. Gore. It seems so; ye3,'sir. 

Mr. Jefferis. But there is no record anywhere, so far as you have been able to 
find, showing any of their dealings, if they had any, with the men who got the money? 

Mr. Gore. No. There is some with respect to the attorneys who got 30 per cent. 
With respect to the various and sundry people, there has been a great deal of testimony 
taken. It appears from the testimony that Governor Dukes was paid $1,500 by 
Le Flore and McCurtain. He was asked what service he rendered for the $1,500, and 
he said that he sympathized with the contention of the claimants. That was his own 
answer as to the service he rendered. I have information that there were a good 
many things in connection with the payments that were irregular, but I do not care 
to characterize them now. 

Mr. Burtness. Sympathy came pretty high in those days. 

Mr. Gore. Yes. If we could supply it on that basis, it would be better than 
practicing law, possibly, or even better than serving in Congress. There were a good 


30 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 


many irregularities in reference to those payments that I am not prepared at the 
moment to go into with accuracy. If tho~e people were entitled to anythin" for their 
services, they should have been paid by the Choctaw Nation and not by these men. 

Mr. Burtness. If they were helpers of the delegates, then they should have been 
paid out of the total fee. 

Mr. Gore. If that assumed state of facts had been true, then Mr. Le Flore and Mr. 
McCurtain should have paid these delegates, or their heirs should have been paid 
from money coming to them. That is undoubtedly what Peter Pitchlynn had in 
mind when he made that memorandum that Mr. Clark has referred to. McCurtain 
and Le Flore had no authority to pay the debts of Pitchlynn and Garland and the 
Folsoms. Whatever debts they owed were debts against their estates, and should 
have been paid by their administrators or executors. Mr. McCurtain and Mr. Le Flore 
had no authority to pay Tom, Dick, and Harry, and then say, “ The men whom we 
represent, or the delegates, were indebted to those people,” thus constituting them¬ 
selves administrators and executors. They were without any authority to liquidate 
the debts of those decedents. 

Mr. Burtness. What about McCurtain and Le Flore themselves? As I under¬ 
stand it, it has been decided in the lawsuits tried, that Garland and Pitchlynn were 
each entitled to one-fourth of the 20 per cent. However, they died before the work 
was completed, and others did a part of the work. Should there not have been an 
equitable division of the money? 

Mr. Gore. That is a matter that would have to be settled by the courts. The 
courts will allow these people whatever they are entitled to. If they are not entitled 
to that 20 per cent, that is a judicial question that the court will have to determine 
from the evidence. 

Mir. Burtness. Were there other delegates, or whatever they called them, between 
those four or five original men and the appointment of McCurtain and Le Flore? 

Mr. Gore. No; I think not. Peter Folsom lived until, I think, about the time of 
this distribution. I do not remember the exact date of his death. I appreciate the 
point you make. 

Mr. Burtness. There were seven there that acted as delegates and surely it could 
not be held that they were entitled to seven times 25 per cent? 

Mr. Gore. No. Under the decision of the Supreme Court McCurtain and Le Flore 
would not be allowed to share in this 20 per cent. Whatever they were entitled to, 
would be a matter of arrangement with the tribe. They would not be allowed to 
levy an assessment on the heirs of these original claimants. 

We make the point, first, that this is not a frivolous claim; that it is supported by 
the judgment for $94,000, and that it is also supported by the decision of the Supreme 
Court. Of course, they stand at the doors of Congress helpless, and unless you open 
the door of justice to them, it will be closed in their faces. If you have opened it to 
others, we feel that there should be no discrimination as to these claimants, and we 
believe that they should be allowed to appear and present their claim. If it is not 
based on facts and is not justified by the testimony, Mr. Clark and the Department 
of Justice will protect every interest of the Indians. 

Mr. Burtness. I take it it is your desire that the Senate bill should be passed as it 
passed the Senate last Saturday. 

Mr. Gore. Yes. I think it is in the interest of those whom I represent and in the 
interest of the nation that this resolution should go through so that we may have all 
of these cases heard and tried at once. I will do my very best to bring that about 
because I do not want to stringing over a series of years. It seems to me it is better 
for Congress not to have these people coming back year after year and Congress after 
Congress importuning Congress to give them an opportunity to be heard in court. 

Mr. Burtness. Mhen will the Garland and i itchlynn cases be heard, in the 
regular course? 

Mr. Gore. The attorneys for the Garlands want to be heard at this session of the 
court. 

Mr. Clark. I do not see how that can be done because they have not completed the 
taking of testimony. 

Mr. Burtness. And you have six months after that. 

Mr. Clark. Yes. I do not believe it can be done at this session of court. 

Mr. Gore. If you pass this regulation, however, the chances are that all of these 
matters can be determined at once and I think that ought to be done. 

Mr. Lurtness. I was wondering whether they could be disposed of at the same 
time if this bill were passed. 

Mr. Gore. Since Mr. Clark has spoken of it, I remember that there is a witness in 
Colorado whose testimony is to be taken at an early date, and then the Government has 

RD 1 2.8 

MB 


RELIEF OF HEIRS OF ISRAEL FOLSOM. 31 

six months in which to take testimony after the claimants close, so it will go over at 
least until another term of court. I am very much obliged to you. 

Mr. Clark. Mr. Chairman, I would like to ask permission to make a memorandum 
statement something like the Senator has put in the record and then file it with the 
committee. 

Mr. Burtness. How long a time do you want, Mr. Clark? 

Mr. Clark. I will be goverend in that according to what the committee thinks 
about it. 

Mr. Burtness. Could you prepare it before you leave here? 

Mr. Clark. Yes; 1 can, I guess, but I would rather go home and do it. However, I 
can stay here and do it. I would like to have about 10 days if that will not be too long. 

Mr. Burtness. Well, this bill can not be reported until the next session. 

Mr. Jefferis. I would like to ask a question. Is the account filed by Le Flore and 
McCurtain a part of the record? 

Mr. Burtness. That will be a part of the record because it is a part of the report of 
the Indian Bureau. 

Mr. Gore. I believe it is in the record that this bill was referred to the Department 
of the Interior and recommended by them favorably with certain amendments. 

Mr. Burtness. That is in the record. 

Mr. Clark. With reference to that I want to say this, which I neglected to say a 
while ago: As I remember, the bill was introduced in July, 1921, and I notice this 
statement in the record when Senator Gore was before the committee on April 8. 
Mr. Carter said: 

“ If the chairman will permit, I will say that when I introduced this bill I called the 
attention of the Choctaw chief to it. Then, when Mr. Snyder was to have a hearing 
upon it I notified the chief saying that the hearing was to be held in December.” 

That is, last year. 

‘ ‘He wrote me back saying that he would advise the tribal attorney for the Choc¬ 
taws so that he might take such action as he saw fit.” 

I had no knowledge of such a bill pending until, I think it was, April of this year, 
the very day I wired you, or probably the day after. I wired Miss Robertson, I 
think, first, and then I wired you with reference to it, and that is the first knowledge 
I had of the bill pending. 

Now, with reference to the report of the department as to the bill. That report 
was made before I had any knowledge of the pendency of the bill or knew anything 
about it, and as I understand, the report just simply said they knew of no reason why 
a jurisdictional bill should not be passed. I do not think it could be said that they 
were particularly urging that it be done or reported in favor of its being done. 

Mr. Burtness. Unless there is objection Mr. Clark will have two weeks in which 
to file a memorandum which may be inserted in the record. 

Mr. Clark. My idea was this, that after thinking over the things that are in the 
record there might be some other matters I would want to insert in the record. 

(Thereupon the subcommittee adjourned.) 

21241—22-3 


X 


; 

■.urn i 

. ' 

- ' ••• \,i 




! h ■ , 

■ i ; * 

; 

'■■■ • 

- 

< : 






























































o > 



4 o. 

s o % 

^ ° - * ® - ° 

y *°* v oL'* ^ ^0 * 

• V , <u ^ «T> x'P' ► 

^ ^ * 







*a 



,* >- ^ °. 

, S % C)^ O 'O , t" 

* * A u 'U 

cy .*■ ‘ * * O 

( ^ t /y^, -* O J 

r ^ * &({[/Z/^, -P vN V 

° 

W o 




<^ r ^V 



^ r . . _ , 

4 0 9 & 

<f> *<> 

k V j. 1 

* «> °o ' 

, ~ - A- V- " 1 ' 'P 

* -*■.-> s> .a; -. *3 

•o ^ A 

<v** 

.* 4^ % . 

A *-7'..' 

v\ o * a A «<£> r\ v ~ • * • * * o -ol- f< 

-k . C c-ss^. #> •#> r u - O ^ • 





/ 4 


O • *. 




\ 




o V 


D M Q 



\ < 



r ^ ’ 

•*o’ \ '*... 

.<T .*••. <? V* «Aw> A 

. <* A 4 .‘aW' •A A ,^' 1 ^' 

V* A . ^\MJ/7U ° y >(( v o 

^ v * *a 

°o 

' ,<r *-> * 





o • * 


x« 



- *5* , 

A* A 
-** 0 


^ ' A 1 



P I ** 


P N ° 




• >° A - 

• .o’ ^ ‘ 

,9^ . * •°. 

P .4* 

-J' <p 

A** 

+ ^ -» 

U A <V V -..* aW 

6 0*«« 0^ t 

< .-^W. ^ o , C .' 

*- 0 ^ '!@gSK ^ \ 

r % 

<A ,'•«-'> V- > 5 '-*'. O, 

£ / “ ■* • ' ' 1 


O « k 


0 



/ ^ Vv V 

* V 



A * 



o -o . * «* A 


\ 


• 1 ' a 4 O 




O N 0 


0 ,0 


c .w? 

^ •# 

° 


/A) -p 

\X . "tv 

o V 

«* 



o A^iv 





0 f * • °- 


\ 




On o 



4 O■ 

L' 


* a v A- 

* o . * ” A <V v ' A* * 4 

A c o - « „ ^ 

5.°-^ \** 

' %'■■'■ ^ 

* * • ® - > V % s 

%A / 

* *'%. °^W. : 



y \ 

,o • y *°^ > 

« A .’AVr " 

'^•v’ . a\sr/a. 


• ,'>-v 

* V <#> 


<r 





o 


. A 

'^o Y 

; ,o v. * ^ 

^ a. 



i* a 

“ % C° 




V • o 


/ 






-a? ^ 

V o # 




>* A 


; <j5 °- 

•* A °° ' 

v -f 

* -t, A A^ra®k'- - 

*. ^ ; 

o A o l | ^ * 

* v V, o J* ♦ 1 1 

\ <1 v A* _ ^ 

“ * .0^ ^ 

0° ^ A* / 






o. * „ ; o 0 .0 



A 


.f 


\ 




o w O 



Op*" 



c 0 N G * 

^ ^ p°^xv ^ ^ 

< N V 

*>> <v 
o V 





>r-\ ° ^ ^ * ^vJS 

/ «? v}> VAV ^ V 

<C^ O 'o.A A <- * 

_V . , „ ^ <^> „ M o A, 

I 


0* * « * o, 



H ° 

i > ^ 


<n y v<\ 



0 , 


w; ,o f • 














•1°/, 


<#• '. 


, - S %. 

4° % '••• 

■ v c° O.V4,A °o 

j, -y ^ 



-Vy’ 

; ** v \ ^irtf ° .' 

' <- *'-••• A '••* 

\ -v ^ " 






*? V 


<£■ *.„.• 0° V ** ^ -.Vo’ .0 

v ^ aO v > v *LVL% ^ <o v »** 

i fS 3 rA T^to. I- . ‘TV ► x / i ^ 4 f 4 /f^. « oj _ k 



*>» <-&• 
o V 





'® • * 4 ^ >*> 

o V& 0 0 “ ® ♦ <£. 

f O • _r^^v . - V s 

« A * 

\X o 

o V 



H<2* 




^ * v®**' ,1 -a* 

c5> * « ■» .<?> 


"• Y- tLuVvV^ *> v sy •■ < ^y / y/UJr ' \f- 

* C-, ^ 4 . M ^ 5 o* n 0 ^ <?-^ C 

*? ° - 0 A 0 ' ' 1 4^ 

v *vVCv* cv <<y oi*®- > v *^Lr* 



--TT.'' A* ^ '». . * A A ‘-r..' ,0’ -„ 

V (V • w ' * * ^o \ & c c N 0 ■* < ^ Ci 0^ • 1 ' * ♦ ? O 

i * •y. , ^ - j&r,. ,'Jl > , «\ s •^nNw^’'' Ta . ^ * &n[//ytz> -» «X 







4 O. 

£> Xv 


^ °^ * ° *° a 0 # ' 1 ‘ / °. 

V % S V*'4, o. Sy * 1 • °* "V> V % 


o_ -» 



<- *r. A *ty ♦■ 

• /* 






«o 

% 





• v^vv V ^ «» * 

o, -O..* A <■ *y?. .* .0^ '«•■* A 

v& c 0 ** ° 4 Q v ••■'*. O aA 0 0 “ ° <* 

■» O .5. r *T Cr v 1 /Y7^L_ ■* O J*ly • ^ 

»- ^o t-^ ^0* *o V* "^ 



-*• o' 





A-V 

.“V ° 



^° A x °^' P'%, 

.o 'V "•'-•* ^ °^ * ° - ° ° a 0 ^ " •' 1 v 

rM 5 ®: **£ :mVA\ 

. A S % °oWWW' -. 

< k > v.*' O. 'o.*-* A. <. ^ -°«‘ 

t / a ^C> c ° “ ° * ^ (fi • *■ ' * ♦ 

k- ^. 0 < ->t-, t^- »«v^l0l" -»*_ A 

r \-^\/ % / 

° v '•*•*■ V ^ v ,‘^ik'% ^ 9 v“- 

•', ° r^iM; J ^v > ;■ 

* A' y '^> i -* 

* A^ -Ov * 

r/«* <g v 'o..-* a. < « 

. ’°o |WAR 7/J c°'-V t^G ^ .«•"•* ^ 


0_ x 




O M 0 


•iK *■ 


' v "V 

, ,'is^ DOBBS BROS. ^ 

>' library binding 

fV ° • <*. 



* <t? o 




gL >>V J ST. AUGUSTINE 

✓ss®*sx _. . \\ • U * , 


f i° 


FLA. 


4 O^ 

XV <F 

32084 '*’* . N s~\ 



o V 


4- 0v ^. 



v- o' 


4 O< 
1? x» 


* N 

-x s\ L 







































































